UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 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): April 19, 2016

 

 

MGM Growth Properties LLC

(Exact name of registrant as specified in its charter)

 

 

 

Delaware   001-37733   47-5513237

(State of Incorporation

or Organization)

 

(Commission

File Number)

 

(I.R.S. Employer

Identification No.)

 

6385 S. Rainbow Blvd., Suite 500

Las Vegas, Nevada

  89118
(Address of Principal Executive Offices)   (Zip Code)

Registrant’s telephone number, including area code: (702) 669-1480

 

 

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 (see General Instruction A.2. below):

 

¨ 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))

 

 

 

INTRODUCTORY NOTE

On April 25, 2016, MGM Growth Properties LLC (the “Company”) completed its previously announced initial public offering (the “IPO”) of 57,500,000 of its Class A shares representing limited liability company interests (the “Class A shares”) (inclusive of the full exercise by the underwriters of their option to purchase 7,500,000 Class A shares). In connection with the IPO, the Company entered into several material definitive agreements that, among other things, set forth the terms and conditions of the IPO and provide a framework for the Company’s relationship with MGM Resorts International (“MGM”) following the IPO, and also adopted certain compensation plans all as summarized below.

 

Item 1.01 Entry into a Material Definitive Agreement

Indenture and Senior Notes Registration Rights Agreement

On April 20, 2016, MGP Escrow Issuer, LLC (which merged with and into MGM Growth Properties Operating Partnership LP (the “Operating Partnership”) upon the completion of certain formation transactions associated with the Company on April 25, 2016 (the “Formation Transactions”)) and MGP Escrow Co-Issuer, Inc. (collectively, the “Issuers”), indirect wholly owned subsidiaries of MGM at the time of issuance, issued $1.05 billion in aggregate principal amount of their 5.625% senior notes due 2024 (the “Notes”) under an indenture dated as of April 20, 2016 (the “Indenture”) among the Issuers and U.S. Bank National Association, as trustee. The Notes were sold in the United States only to accredited investors pursuant to an exemption from the Securities Act of 1933, as amended (the “Securities Act”), and subsequently resold to qualified institutional buyers pursuant to Rule 144A under the Securities Act and to non-U.S. persons in accordance with Regulation S under the Securities Act. In connection with the merger of MGP Escrow Issuer, LLC with and into the Operating Partnership as part of the Formation Transactions, on April 25, 2016, the Operating Partnership, together with its subsidiaries MGP Lessor, LLC and MGP Lessor Holdings, LLC (together, the “Subsidiary Guarantors”), and MGP Escrow Co-Issuer, Inc., entered into a supplemental indenture to the Indenture (the “Supplemental Indenture”) through which the Operating Partnership assumed the obligations of MGP Escrow Issuer, LLC under the Indenture, and the Subsidiary Guarantors became guarantors under the Indenture in accordance with its terms.

The Issuers used the net proceeds of the offering, or approximately $1,030.9 million (after giving effect to discounts, commissions and offering expenses), together with borrowings under the Term Loan Facilities (as defined below) entered into by the Operating Partnership in connection with the Formation Transactions and the proceeds of an equity contribution by the Company into the Operating Partnership that occurred concurrently therewith, to repay the bridge facilities entered into by MGM and certain of its subsidiaries and assumed by the Operating Partnership in connection with the Formation Transactions. The proceeds from the Notes offering were placed in escrow upon closing and were released in connection with the completion of the Formation Transactions.

The Notes will mature on May 1, 2024. The Issuers will pay interest on the Notes on May 1 and November 1 of each year, commencing on November 1, 2016. Interest on the Notes will accrue at a rate of 5.625% per annum and be payable in cash. The Notes are fully and unconditionally guaranteed, jointly and severally, on a senior basis by all of the Operating Partnership’s subsidiaries that guarantee the Operating Partnership’s credit facilities. The Issuers may redeem all or part of the Notes at a redemption price equal to 100% of the principal amount of the Notes plus, to the extent the Issuers are redeeming Notes prior to the date that is three months prior to their maturity date, an applicable make whole premium, plus, in each case, accrued and unpaid interest.

The Indenture contains customary covenants that will limit the Issuers’ ability and, in certain instances, the ability of the Issuers’ subsidiaries, to borrow money, create liens on assets, make distributions and pay dividends on or redeem or repurchase stock, make certain types of investments, sell stock in certain subsidiaries, enter into agreements that restrict dividends or other payments from subsidiaries, enter into transactions with affiliates, issue guarantees of debt, and sell assets or merge with other companies. These limitations are subject to a number of important exceptions and qualifications set forth in the Indenture.

Events of default under the Indenture include, among others, the following with respect to the Notes: default for 30 days in the payment when due of interest on the Notes; default in payment when due of the principal of, or premium, if any, on the Notes; failure to comply with certain covenants in the Indenture for 60 days after the receipt of notice from the trustee or holders of 25% in aggregate principal amount of the Notes of such series; acceleration or payment default of debt of the Issuers or a significant subsidiary thereof in excess of a specified amount that remains uncured for 30 days; certain events of bankruptcy or insolvency; and the Master Lease (as defined below) or the guaranty related thereto terminating or ceasing to be effective in certain circumstances. In the case of an event of default arising from certain events of bankruptcy or insolvency with respect to the Issuers, all Notes then outstanding will become due and payable immediately without further action or notice. If any other event of default occurs with respect to the Notes, the trustee or holders of 25% in aggregate principal amount of the Notes may declare all the Notes to be due and payable immediately.

In connection with the closing of the Notes, on April 20, 2016, the Issuers and the initial purchasers of the Notes entered into a registration rights agreement (the “Senior Notes Registration Rights Agreement”). Pursuant to the Senior Notes Registration Rights Agreement, the Issuers agreed to use their commercially reasonable efforts to file an exchange offer registration statement with the Securities and Exchange Commission to be used in connection with the exchange of the Notes and related guarantees for registered notes and related guarantees with substantially identical terms in all material respects, except that the registered notes will not have legends restricting transfer. If the Issuers are not permitted to effect the exchange offer, or under certain other circumstances, the Issuers are required to file a shelf registration statement relating to the resale of the Notes. If neither the exchange offer registration statement nor the shelf registration statement are declared effective, or remain effective, for the required periods pursuant to the Senior Notes Registration Rights Agreement, or if the Issuers do not comply with certain other obligations under the Senior Notes Registration Rights Agreement relating to the foregoing, then additional interest will accrue on the Notes in accordance therewith and under the Indenture, subject to the limitations therein. In connection with the merger of MGP Escrow Issuer, LLC with and into the Operating Partnership as part of the Formation Transactions, the Operating Partnership and the Subsidiary Guarantors entered into a joinder to the Registration Rights Agreement, with the Operating Partnership assuming the obligations of MGP Escrow Issuer, LLC thereunder, and the Subsidiary Guarantors assuming certain obligations thereunder in accordance with its terms.

These descriptions of the Indenture, Senior Notes Registration Rights Agreement and Supplemental Indenture are qualified in their entirety by reference to the full texts of the Indenture, Senior Notes Registration Rights Agreement and Supplemental Indenture incorporated by reference hereto as Exhibits 4.1, 4.2 and 4.3, respectively. This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy the Notes.

Credit Agreement

On April 25, 2016, the Operating Partnership entered into a credit agreement (the “Credit Agreement”) among the Operating Partnership, certain financial institutions named therein as lenders and Bank of America, N.A. as administrative agent, comprised of a $300,000,000 senior secured term loan A facility (the “Term Loan A Facility”), a $1,850,000,000 senior secured term loan B facility (the “Term Loan B Facility” and together with the Term Loan A Facility, the “Term Loan Facilities”) and a $600,000,000 senior secured revolving credit facility (the “Revolving Credit Facility”). The Revolving Credit Facility and Term Loan A Facility will initially bear interest at LIBOR plus 2.75% for the first six months after execution of the Credit Agreement, and thereafter the interest rate will be determined by reference to a total net leverage ratio pricing grid which would result in an interest rate of LIBOR plus 2.25% to 2.75%. The Term Loan B Facility will bear interest at LIBOR plus 3.25% with a LIBOR floor of 0.75%. The Term Loan B Facility was issued at 99.75% to initial lenders. The Revolving Credit Facility and the Term Loan A Facility will mature in 2021 and the Term Loan B Facility will mature in 2023.

The Credit Agreement governing the Revolving Credit Facility and the Term Loan Facilities contains customary covenants that, among other things, limit the ability of the Operating Partnership and its restricted subsidiaries to: (i) incur additional indebtedness; (ii) merge with a third party or engage in other fundamental changes; (iii) make restricted payments; (iv) enter into, create, incur or assume any liens; (v) make certain sales and other dispositions of assets; (vi) enter into certain transactions with affiliates; (vii) make certain payments on certain other indebtedness; (viii) make certain investments; and (ix) incur restrictions on the ability of restricted subsidiaries to make certain distributions, loans or transfers of assets to the Operating Partnership or any restricted subsidiary. These covenants are subject to a number of important exceptions and qualifications. The Revolving Credit Facility and the Term Loan A Facility require the Operating Partnership to comply with certain financial covenants, which may restrict the Operating Partnership’s ability to incur additional debt to fund its obligations in the near term.

The Revolving Credit Facility and the Term Loan Facilities also provide for customary events of default, including, without limitation, (i) payment defaults, (ii) inaccuracies of representations and warranties, (iii) covenant defaults, (iv) cross-defaults to certain other indebtedness in excess of specified amounts, (v) certain events of bankruptcy and insolvency, (vi) judgment defaults in excess of specified amounts, (vii) actual or asserted invalidity or impairment of any loan documentation, (viii) the security documents cease to create a valid and perfected first priority lien on any material portion of the collateral, (ix) ERISA defaults, (x) termination of the Master Lease and (xi) change of control. The Term Loan Facilities are subject to amortization of principal in equal quarterly installments, with 5.0% of the initial aggregate principal amount of the Term Loan A Facility and 1.0% of the initial aggregate principal amount of the Term Loan B Facility to be payable each year. The Revolving Credit Facility and the Term Loan Facilities are both guaranteed by each of the Operating Partnership’s existing and subsequently acquired direct and indirect wholly owned material domestic restricted subsidiaries, and secured by a first priority lien security interest on substantially all of the Operating Partnership’s and such restricted subsidiaries’ material assets, including mortgages on the Company’s properties subject to the Master Lease (as defined below), subject to customary exclusions. As of April 25, 2016, the Company has $600.0 million of available borrowing capacity under the Revolving Credit Facility (excluding letters of credit).

This description of the Credit Agreement is qualified in its entirety by reference to the full text of the Credit Agreement attached hereto as Exhibit 10.17.

Master Contribution Agreement

On April 25, 2016, the Company entered into a master contribution agreement (the “Master Contribution Agreement”) with MGM and the Operating Partnership, which provides for, among other things, the Company’s responsibility for liabilities relating to its business and the responsibility of MGM for liabilities unrelated to the Company’s business, the Company’s agreements with MGM and the Operating Partnership regarding the principal transactions necessary to effect the transfer by MGM of certain assets to the Company or its subsidiaries, the assumption by the Company or its subsidiaries of certain liabilities in connection with that transfer, the assumption by the Company or its subsidiaries of the bridge facilities entered into by MGM and certain of its subsidiaries in connection with the Formation Transactions and other agreements that govern various aspects of the Company’s relationship with MGM after the closing of the transactions contemplated by the Master Contribution Agreement. The Master Contribution Agreement also contains indemnification obligations and ongoing commitments of the Company, the Operating Partnership and MGM. This description of the Master Contribution Agreement is qualified in its entirety by reference to the full text of the Master Contribution Agreement attached hereto as Exhibit 2.1. Exhibits and schedules that have been excluded from the text of the Master Contribution Agreement attached hereto will be supplementally furnished to the Commission upon request.

Master Lease

On April 25, 2016, a subsidiary of the Company (the “Landlord”) entered into a long-term triple-net master lease agreement (the “Master Lease”) with a subsidiary of MGM (the “Tenant”) pursuant to which all of the Company’s real estate assets (each a “Property” and collectively the “Properties”) were leased to the Tenant. The Master Lease has an initial lease term of ten years with the potential to extend the term for four additional five-year terms thereafter at the option of the Tenant. The Master Lease provides that any extension of its term must apply to all of the Properties under the Master Lease at the time of the extension. The Master Lease has a triple-net structure, which requires the Tenant to pay substantially all costs associated with each Property, including real estate taxes, insurance, utilities and routine maintenance, in addition to the base rent. Additionally, the Master Lease provides the Company with a right of first offer with respect to MGM’s development properties located in National Harbor, Maryland and Springfield, Massachusetts, which the Company may exercise should MGM elect to sell these properties in the future.

The annual rent payments due under the Master Lease will initially be $550.0 million. Rent under the Master Lease consists of a “base rent” component (the “Base Rent”) and a “percentage rent” component (the “Percentage Rent”). For the first year, the Base Rent will represent 90% of the initial total rent payments due under the Master Lease, or $495.0 million, and the Percentage Rent will represent 10% of the initial total rent payments due under the Master Lease, or $55.0 million. The Base Rent includes a fixed annual rent escalator of 2.0% for the second through the sixth lease years (as defined in the Master Lease). Thereafter, the annual escalator of 2.0% will be subject to the Tenant and, without duplication, the MGM operating subsidiary sublessees of the Tenant (such sublessees, collectively, the “Operating Subtenants”), collectively meeting an adjusted net revenue to rent ratio of 6.25:1.00 based on their net revenue from the leased properties subject to the Master Lease (as determined in accordance with U.S. GAAP, adjusted to exclude net revenue attributable to certain scheduled subleases and, at MGM’s option, reimbursed cost revenue). The Percentage Rent will initially be a fixed amount for approximately the first six years and will then be adjusted every five years based on the average actual annual net revenues of the Tenant and, without duplication, the Operating Subtenants from the leased properties subject to the Master Lease at such time for the trailing five calendar-year period (calculated by multiplying the average annual net revenues, excluding net revenue attributable to certain scheduled subleases and, at MGM’s option, reimbursed cost revenue, for the trailing five calendar-year period by 1.4%). The Master Lease includes covenants that impose ongoing reporting obligations on the Tenant relating to MGM’s financial statements. The Master Lease will also require MGM, on a consolidated basis with the Tenant, to maintain an EBITDAR to rent ratio (as described in the Master Lease) of 1.10:1.00.

This description of the Master Lease is qualified in its entirety by reference to the full text of the Master Lease attached hereto as Exhibit 10.1.

Corporate Services Agreement

On April 25, 2016, the Company entered into a corporate services agreement with MGM (the “Corporate Services Agreement”), pursuant to which MGM provides the Company and its subsidiaries with financial, administrative and operational support services, including accounting and finance support, human resources support, legal and regulatory compliance support, insurance advisory services, internal audit services, governmental affairs monitoring and reporting services, information technology support, construction services, and various other support services. The Corporate Services Agreement provides that the Operating Partnership will reimburse MGM for all costs MGM incurs directly related to providing the services thereunder. This description of the Corporate Services Agreement is qualified in its entirety by reference to the full text of the Corporate Services Agreement attached hereto as Exhibit 10.2.

IPO Registration Rights Agreement

On April 25, 2016, the Company entered into a registration rights agreement (the “IPO Registration Rights Agreement”) with operating subsidiaries of MGM that hold partnership units of the Operating Partnership (“Operating Partnership Units”). Pursuant to the Registration Rights Agreement, commencing on the first anniversary of the first day of the first full calendar month following the completion of the IPO, MGM and certain of its subsidiaries will have the right to require the Company to effect a registration statement to register the issuance and resale of Class A shares upon exchange of Operating Partnership Units beneficially owned by MGM. The IPO Registration Rights Agreement also provides for, among other things, demand registration rights and piggyback registration rights for the operating subsidiaries of MGM that hold Operating Partnership Units. This description of the IPO Registration Rights Agreement is qualified in its entirety by reference to the full text of the IPO Registration Rights Agreement attached hereto as Exhibit 10.3.

IP License Agreement

On April 25, 2016, the Company entered into a royalty-free intellectual property rights license agreement with MGM (the “the IP License Agreement”), pursuant to which the Company will have the right to use “MGM” in the corporate names of the Company and its subsidiaries for up to 50 years. Pursuant to the IP License Agreement, the Company will also have the right to use the “MGM” mark and the “MGM” logo in the Company’s advertising materials without royalties for up to 50 years. This description of the IP License Agreement is qualified in its entirety by reference to the full text of the IP License Agreement attached hereto as Exhibit 10.4.

Amended and Restated Limited Partnership Agreement of the Operating Partnership

On April 25, 2016, the Company entered into the amended and restated agreement of limited partnership agreement (the “Partnership Agreement”) with MGM Growth Properties OP GP LLC, as the general partner, and certain subsidiaries of MGM that hold Operating Partnership Units. The Partnership Agreement provides holders of Operating Partnership Units the right (subject to certain conditions and limitations) to exchange all or a portion of their Operating Partnership Units for cash (in the form of a redemption of such Operating Partnership Units by the Operating Partnership) or, at the election of the Company’s conflicts committee on its behalf, for Class A shares on a one-for-one basis (subject to adjustment as provided in the Partnership Agreement), in each case, subject to certain ownership limits. A description of the Partnership Agreement is set forth in the section entitled “Description of Partnership Agreement of Operating Partnership” of the Company’s prospectus (the “Prospectus”) filed on April 21, 2016 pursuant to Rule 424(b)(4) under the Securities Act, relating to the Company’s Registration Statement on Form S-11, as amended (File No. 333-210322). This description of the Partnership Agreement is qualified in its entirety by reference to the full text of the Partnership Agreement attached hereto as Exhibit 10.5.

The representations, warranties and covenants contained in the agreements described above were made only for purposes of the respective agreements and as of the specific date (or dates) set forth therein, and were solely for the benefit of the parties to such agreements and are subject to certain limitations as agreed upon by the contracting parties. In addition, the representations, warranties and covenants contained in the agreements may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries of any of the agreements described above and should not rely on the representations, warranties and covenants contained therein, or any descriptions thereof, as characterizations of the actual state of facts or conditions of the Company or the Operating Partnership.

 

Item 2.03 Creation 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 with respect to the Indenture and the Credit Agreement is incorporated by reference into this Item 2.03.

 

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

2016 Omnibus Incentive Plan

Effective as of April 19, 2016, the Company adopted the 2016 Omnibus Incentive Plan (the “2016 Plan”). The 2016 Plan will continue in effect until the expiration of its ten-year term. The 2016 Plan allows for the grant of share options (“Options”), share appreciation rights (“SARs”), restricted shares, restricted share units (“RSUs”), performance shares, performance share units (“PSUs”) and other share-based awards to eligible individuals. The 2016 Plan is designed to advance the interests of the Company and its shareholders by providing key management employees, non-employee directors and other eligible participants of the Company and its affiliates with innovative financial incentives, through share- and performance-based awards. This description of the 2016 Plan is qualified in its entirety by reference to the full text of the 2016 Plan attached hereto as Exhibit 10.6.

The description of the RSUs and PSUs is qualified in its entirety by reference to the full texts of the Form of 2016 Performance Share Units Agreement and Form of 2016 Restricted Share Units Agreement (Employees) attached hereto as Exhibits 10.11 and 10.14, respectively.

Annual Performance-Based Incentive Plan

Effective as of April 19, 2016, the Operating Partnership adopted the Annual Performance-Based Incentive Plan (the “Incentive Plan”) to tie the goals and interests of participating officers to those of the Operating Partnership, and, ultimately, the Company and its shareholders, and to enable the Operating Partnership to attract and retain highly qualified executive officers. Generally, within the first 90 days of each performance period, the board of managers of the general partner of the Operating Partnership will establish in writing, with respect to such performance period, (a) one or more performance goals, (b) a target objective or objectives with respect to such performance goals and (c) a formula or method for computing the amount of bonus compensation awardable to each participant if the performance goals are attained. Performance goals will be based upon the achievement of performance measures specified by the board of managers of the general partner of the Operating Partnership.

Approved bonus awards will generally be payable in cash or equity awards of the Company as soon as practicable during, and generally by March 15th of, the year following the year to which the bonus awards relate. If a participant is not employed as of the last day of an applicable period for which the participant would be eligible for awards, then that participant’s award for that period may be prorated or eliminated accordingly pursuant to the rules established by the board of managers of the general partner of the Operating Partnership in accordance with the Incentive Plan. The Operating Partnership intends for the Company to grant PSUs under the 2016 Plan in payment of the portion of any calculated bonus for a participant who is also a Section 16 officer of the Company that is in excess of such officer’s base salary (the “Bonus PSUs”). The Bonus PSUs are intended to contain terms similar to other PSUs granted under the 2016 Plan, but they will not be subject to forfeiture in the event of the officer’s termination and they have a performance condition based on the Company’s absolute total shareholder return (“TSR”). Depending on the Company’s absolute TSR on the third anniversary of the grant date (or, if earlier, a change of control), Bonus PSUs may be settled with respect to anywhere from 0% to 160% of the target award. The Bonus PSUs are granted together with dividend equivalent rights that are subject to the same vesting terms as the underlying Bonus PSUs. Vesting awards and associated dividend equivalent rights are paid in Class A shares, less applicable withholding, within 30 days following the last day of the performance period of the Bonus PSUs. However, fractional shares are paid in cash.

These descriptions of the Incentive Plan and Bonus PSUs are qualified in their entirety by reference to the full texts of the Incentive Plan and Form of 2016 Performance Share Units Agreement (Bonus) attached hereto as Exhibits 10.7 and 10.12, respectively.

Change of Control Policy

On April 19, 2016, the Operating Partnership adopted a change of control policy for executive officers (the “Change of Control Policy”). The Change of Control Policy provides a uniform severance policy for the termination of an executive officer by the Operating Partnership without “good cause,” or by an executive officer with “good cause” (each term as defined in the Change of Control Policy), within six months prior to, on or within 12 months following a change of control of either MGM or the Company, as set forth in the Change of Control Policy. The Change of Control Policy covers each of the Company’s named executive officers. This description of the Change of Control Policy is qualified in its entirety by reference to the full text of the Change of Control Policy attached hereto as Exhibit 10.8.

MGM Growth Properties LLC Nonqualified Deferred Compensation Plan for Employees

On April 19, 2016, the Operating Partnership adopted the MGM Growth Properties LLC Nonqualified Deferred Compensation Plan (the “DCP”). Under the DCP, the Company’s named executive officers may elect to defer up to 50% of their base salary and/or 75% of any non-salary cash compensation on a pre-tax basis and accumulate tax-deferred earnings on their accounts. The DCP allows participants to allocate their account balances among different measurement options, which are used as benchmarks for calculating amounts that are credited or debited to their account balances (for tax reasons, no ownership interest in the underlying funds is acquired). Subject to limitations imposed by applicable tax laws, participants may elect when to receive payment of their account balances under the DCP. Payment may accelerate in connection with certain events, including death, disability, retirement and other termination of employment. The Company’s named executive officers are also eligible to participate in MGM’s retirement savings plan qualified under Section 401(k) of the Internal Revenue Code. This description of the DCP is qualified in its entirety by reference to the full text of the DCP attached hereto as Exhibit 10.9.

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.

Amended and Restated Limited Liability Company Agreement

On April 18, 2016, the Company’s Amended and Restated Limited Liability Company Agreement (the “LLC Agreement”) became effective. A description of the LLC Agreement is set forth in the sections of the Prospectus entitled “Description of Shares of MGP” and “Conflicts of Interest and Fiduciary Duties.” The description of the LLC Agreement is qualified in its entirety by reference to the full text of the LLC Agreement attached hereto as Exhibit 3.1.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

 

Exhibit

  

Description

2.1    Master Contribution Agreement by and among MGM Resorts International, MGM Growth Properties LLC and MGM Growth Properties Operating Partnership LP, dated as of April 25, 2016
3.1    Amended and Restated Limited Liability Company Agreement of MGM Growth Properties LLC, effective April 18, 2016 (incorporated by reference to Exhibit 4.1 of the Registration Statement on Form S-8 (File No. 333-210832) filed on April 19, 2016)
4.1    Indenture, dated as of April 20, 2016, among MGP Escrow Issuer, LLC and MGP Escrow Co-Issuer, Inc. and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K of MGM Resorts International filed on April 21, 2016)
4.2    Registration Rights Agreement, dated as of April 20, 2016, among MGP Escrow Issuer, LLC and MGP Escrow Co-Issuer, Inc. and J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the initial purchasers of the Notes (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K of MGM Resorts International filed on April 21, 2016)
4.3    Supplemental Indenture, dated as of April 25, 2016, among MGM Growth Properties Operating Partnership LP, MGP Escrow Co-Issuer, Inc., MGP Lessor Holdings, LLC, MGP Lessor, LLC and U.S. Bank National Association, as Trustee
10.1    Master Lease between MGP Lessor, LLC and MGM Lessee, LLC, dated April 25, 2016
10.2    Corporate Services Agreement between MGM Growth Properties Operating Partnership LP and MGM Resorts International, dated as of April 25, 2016
10.3    Registration Rights Agreement between MGM Growth Properties LLC and MGM Resorts International, dated as of April 25, 2016
10.4    IP License Agreement between MGM Growth Properties LLC and MGM Resorts International, dated as of April 25, 2016
10.5    Amended and Restated Limited Partnership Agreement of MGM Growth Properties Operating Partnership LP, effective April 25, 2016
10.6    2016 Omnibus Incentive Plan (incorporated by reference to Exhibit 99.1 of the Registration Statement on Form S-8 (File No. 333-210832) filed on April 19, 2016)
10.7    Annual Performance-Based Incentive Plan
10.8    Change of Control Policy for Executive Officers
10.9    MGM Growth Properties LLC Nonqualified Deferred Compensation Plan
10.10   

2016 Deferred Compensation Plan for Non-Employee Directors

10.11   

Form of 2016 Performance Share Units Agreement

10.12   

Form of 2016 Performance Share Units Agreement (Bonus)

10.13   

Form of 2016 Restricted Share Units Agreement (Non-Employee Directors)

10.14   

Form of 2016 Restricted Share Units Agreement (Employees)

10.15   

Form of 2016 Restricted Share Units Agreement (MGM Non-Employee Directors)

10.16   

Form of 2016 Restricted Share Units Agreement (MGM Employees)

10.17   

Credit Agreement dated as of April 25, 2016, among MGM Growth Properties Operating Partnership LP, the financial institutions referred to as Lenders therein and the Administrative Agent

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.

 

MGM Growth Properties LLC

(Registrant)

By:   /s/ Andrew Hagopian III
Name:  

Andrew Hagopian III

Title:   Assistant Secretary

Date: April 25, 2016

Exhibit Index

 

Exhibit

  

Description

2.1    Master Contribution Agreement by and among MGM Resorts International, MGM Growth Properties LLC and MGM Growth Properties Operating Partnership LP, dated as of April 25, 2016
3.1    Amended and Restated Limited Liability Company Agreement of MGM Growth Properties LLC, effective April 18, 2016 (incorporated by reference to Exhibit 4.1 of the Registration Statement on Form S-8 (File No. 333-210832) filed on April 19, 2016)
4.1    Indenture, dated as of April 20, 2016, among MGP Escrow Issuer, LLC and MGP Escrow Co-Issuer, Inc. and U.S. Bank National Association, as Trustee (incorporated by reference to Exhibit 4.1 of the Current Report on Form 8-K of MGM Resorts International filed on April 21, 2016)
4.2    Registration Rights Agreement, dated as of April 20, 2016, among MGP Escrow Issuer, LLC and MGP Escrow Co-Issuer, Inc. and J.P. Morgan Securities LLC and Merrill Lynch, Pierce, Fenner & Smith Incorporated, as representatives of the initial purchasers of the Notes (incorporated by reference to Exhibit 4.2 of the Current Report on Form 8-K of MGM Resorts International filed on April 21, 2016)
4.3    Supplemental Indenture, dated as of April 25, 2016, among MGM Growth Properties Operating Partnership LP, MGP Escrow Co-Issuer, Inc., MGP Lessor Holdings, LLC, MGP Lessor, LLC and U.S. Bank National Association, as Trustee
10.1    Master Lease between MGP Lessor, LLC and MGM Lessee, LLC, dated April 25, 2016
10.2    Corporate Services Agreement between MGM Growth Properties Operating Partnership LP and MGM Resorts International, dated as of April 25, 2016
10.3    Registration Rights Agreement between MGM Growth Properties LLC and MGM Resorts International, dated as of April 25, 2016
10.4    IP License Agreement between MGM Growth Properties LLC and MGM Resorts International, dated as of April 25, 2016
10.5    Amended and Restated Limited Partnership Agreement of MGM Growth Properties Operating Partnership LP, effective April 25, 2016
10.6    2016 Omnibus Incentive Plan (incorporated by reference to Exhibit 99.1 of the Registration Statement on Form S-8 (File No. 333-210832) filed on April 19, 2016)
10.7    Annual Performance-Based Incentive Plan
10.8    Change of Control Policy for Executive Officers
10.9    MGM Growth Properties LLC Nonqualified Deferred Compensation Plan
10.10   

2016 Deferred Compensation Plan for Non-Employee Directors

10.11   

Form of 2016 Performance Share Units Agreement

10.12   

Form of 2016 Performance Share Units Agreement (Bonus)

10.13   

Form of 2016 Restricted Share Units Agreement (Non-Employee Directors)

10.14   

Form of 2016 Restricted Share Units Agreement (Employees)

10.15   

Form of 2016 Restricted Share Units Agreement (MGM Non-Employee Directors)

10.16   

Form of 2016 Restricted Share Units Agreement (MGM Employees)

10.17
  

Credit Agreement dated as of April 25, 2016, among MGM Growth Properties Operating Partnership LP, the financial institutions referred to as Lenders therein and the Administrative Agent

Exhibit 2.1

MASTER CONTRIBUTION AGREEMENT

BY AND AMONG

MGM RESORTS INTERNATIONAL,

MGM GROWTH PROPERTIES LLC

AND

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP

Dated April 25, 2016

Table of Contents

 

     Page  

ARTICLE I

 

DEFINITIONS

     1   

1.1

 

Certain Definitions

     1   

1.2

 

Other Terms

     7   

ARTICLE II

 

THE CONTRIBUTION

     7   

2.1

 

Transfer of Assets; Assumption of Liabilities; Consideration

     7   

2.2

 

MGP Assets

     9   

2.3

 

MGP Liabilities

     9   

2.4

 

DISCLAIMER OF REPRESENTATIONS AND WARRANTIES

     11   

2.5

 

Transfer of Assets and Assumption of Liabilities from and after the Effective Time

     11   

ARTICLE III

 

THE INITIAL PUBLIC OFFERING

     12   

3.1

 

The Initial Public Offering

     12   

ARTICLE IV

 

INTERCOMPANY TRANSACTIONS AS OF THE CLOSING DATE

     12   

4.1

 

Time and Place of Closing

     12   

4.2

 

Closing Transactions

     12   

4.3

 

Amended and Restated LLC Agreement; Amended and Restated Limited Partnership Agreement

     13   

4.4

 

Approvals and Notifications

     13   

ARTICLE V

 

FINANCIAL AND OTHER INFORMATION

     13   

5.1

 

Public Information

     13   

5.2

 

Agreement for Exchange of Information

     13   

5.3

 

Record Retention

     14   

5.4

 

Liability

     15   

5.5

 

Production of Witnesses; Records; Cooperation

     15   

5.6

 

Privileged Matters

     16   

ARTICLE VI

 

RELEASE; INDEMNIFICATION

     17   

6.1

 

Release of Pre-Closing Claims

     17   

6.2

 

General Indemnification by the OP

     19   

6.3

 

General Indemnification by the MGM Group

     20   

6.4

 

Contribution

     20   

6.5

 

Indemnification Obligations Net of Insurance Proceeds and Other Amounts

     21   

6.6

 

Procedures for Indemnification of Third-Party Claims

     21   

6.7

 

Tax Procedures

     23   

6.8

 

Additional Matters

     24   

6.9

 

Remedies Cumulative; Limitations of Liability

     25   

 

i

Table of Contents

(Continued)

 

     Page  

6.10

 

Survival of Indemnities

     25   

ARTICLE VII

 

OTHER AGREEMENTS

     25   

7.1

 

Further Assurances

     25   

7.2

 

Confidentiality

     26   

7.3

 

Litigation; Cooperation

     28   

7.4

 

Allocation of Costs and Expenses

     28   

ARTICLE VIII

 

DISPUTE RESOLUTION

     29   

8.1

 

General Provisions

     29   

8.2

 

Mediation

     30   

8.3

 

Arbitration

     30   

ARTICLE IX

 

MISCELLANEOUS

     32   

9.1

 

Power

     32   

9.2

 

Governing Law; Jurisdiction

     32   

9.3

 

Survival of Covenants

     32   

9.4

 

Force Majeure

     32   

9.5

 

Notices

     32   

9.6

 

Termination

     33   

9.7

 

Severability

     33   

9.8

 

Entire Agreement

     34   

9.9

 

Assignment; No Third-Party Beneficiaries

     34   

9.10

 

Public Announcements

     34   

9.11

 

Specific Performance

     34   

9.12

 

Amendment

     34   

9.13

 

Rules of Construction

     34   

9.14

 

Counterparts

     35   

 

ii

EXHIBITS

 

A

  

Form of Corporate Services Agreement

B

  

Form of Registration Rights Agreement

C

  

Form of Intellectual Property License Agreement

D

  

Form of Amended and Restated LLC Agreement

E

  

Form of Amended and Restated Limited Partnership Agreement

F

  

Form of Master Lease Agreement

SCHEDULES

 

Schedule 2.1(a)

 

—

  

Plan of Contribution

Schedule 2.2(a)(ii)

 

—

  

MGP Assets (OP Subsidiaries)

Schedule 2.2(b)

 

—

  

Excluded Assets

 

iii

MASTER CONTRIBUTION AGREEMENT

This MASTER CONTRIBUTION AGREEMENT, dated as of April 25, 2016 (this “ Agreement ”), is by and among MGM Resorts International, a Delaware corporation (“ MGM ”), MGM Growth Properties LLC, a Delaware limited liability company (“ MGP ”), and MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ OP ”). Certain terms used in this Agreement are defined in Section 1.1 .

W I T N E S S E T H:

WHEREAS, the Board of Directors of MGM has determined that it is in the best interests of MGM (i) for MGM to contribute or caused to be contributed certain of MGM’s owned real property to the OP (the “ Contribution ”); (ii) for MGP to elect to be taxed as a real estate investment trust for U.S. federal income Tax purposes effective with its taxable year ending December 31, 2016; (iii) for MGM to cause the Initial Public Offering of MGP; and (iv) for MGP to subscribe to purchase Common Units of the OP with the net proceeds from the Initial Public Offering (collectively, the “ Formation Transaction ”);

WHEREAS, following the consummation of the Initial Public Offering, MGP will own all of the equity interests of the general partner of the OP;

WHEREAS, the Boards of Directors of MGM, MGP and the general partner of the OP have each approved the Formation Transaction;

WHEREAS, in order to effectuate the Formation Transaction, MGM, MGP and the OP desire to enter into this Agreement to provide for, among other things, subject to the terms and conditions set forth herein and in accordance with the Plan of Contribution, the transfer of certain Assets and ownership interests, directly or indirectly, to the OP and the assumption by the OP, directly or indirectly, of certain liabilities, and the execution and delivery of certain other agreements in order to facilitate and provide for the foregoing;

WHEREAS, it is appropriate and desirable to set forth the principal transactions required to effect the Contribution and certain other agreements that will, following the consummation of the Initial Public Offering, govern certain matters relating to the Contribution and the relationship of MGM, MGP, the OP and their respective Subsidiaries.

NOW, THEREFORE, in consideration of the premises and the covenants and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the Parties hereby agree as follows:

ARTICLE I

DEFINITIONS

1.1 Certain Definitions . For purposes of this Agreement, the following terms shall have the meanings specified in this Section 1.1 :

“ Action ” means any demand, action, claim, dispute, suit, countersuit, arbitration, inquiry, subpoena, proceeding or investigation of any nature (whether criminal, civil, legislative, administrative, regulatory, prosecutorial or otherwise) by or before any federal, state, local, foreign or international Governmental Authority or any arbitration or mediation tribunal.

“ Affiliate ” (including, with a correlative meaning, “ affiliated ”) means, when used with respect to a specified Person, a Person that directly or indirectly, through one (1) or more intermediaries, controls, is controlled by or is under common control with such specified Person. For the purpose of this definition and the definitions of “MGP Group” and “MGM Group,” “ control ” (including with correlative meanings, “ controlled by ” and “ under common control with ”), when used with respect to any specified Person shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such Person, whether through the ownership of voting securities or other interests, by contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment, undertaking or otherwise. It is expressly agreed that, from and after the Effective Time and for purposes of this Agreement and the other Transaction Documents, no member of the MGP Group shall be deemed to be an Affiliate of any member of the MGM Group, and no member of the MGM Group shall be deemed to be an Affiliate of any member of the MGP Group.

“ Amended and Restated Limited Partnership Agreement ” means that certain Amended and Restated Agreement of Limited Partnership of MGM Growth Properties Operating Partnership LP, by and among MGM Growth Properties OP GP LLC, a Delaware limited liability company, as the general partner, and MGP and the other parties party thereto as limited partners, in substantially the form attached hereto as Exhibit E .

“ Approvals or Notifications ” means any consents, waivers, approvals, permits or authorizations to be obtained from, notices, registrations or reports to be submitted to, or other filings to be made with, any third Person, including any Governmental Authority.

“ Assets ” means, with respect to any Person, the assets, properties, claims and rights (including goodwill) of such Person, and the right to retain all monies, proceeds and recoveries therefrom, wherever located (including in the possession of vendors or other third Persons or elsewhere), of every kind, character and description, whether real, personal or mixed, tangible, intangible or contingent, in each case whether or not recorded or reflected or required to be recorded or reflected on the books and records or financial statements of such Person.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Common Unit ” has the meaning ascribed to such term in the Amended and Restated Limited Partnership Agreement.

“ Corporate Services Agreement ” means the Corporate Services Agreement in substantially the form attached hereto as Exhibit A , to be entered into by and among MGM, MGP and the OP.

“ Effective Time ” means the time at which the Closing occurs on the Closing Date, which shall be deemed to be 12:01 a.m., New York City Time, on the Closing Date.

 

2

“ Exchange Act ” means the United States Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time that reference is made.

“ Force Majeure ” means, with respect to a Party, an event beyond the control of such Party (or any Person acting on its behalf), which by its nature could not reasonably have been foreseen by such Party (or such Person), or, if it could have reasonably been foreseen, was unavoidable, and includes, acts of God, storms, floods, riots, fires, sabotage, civil commotion or civil unrest, interference by civil or military authorities, acts of war (declared or undeclared) or armed hostilities or other national or international calamity or one or more acts of terrorism or failure of energy sources. Notwithstanding the foregoing, the receipt by a party of an unsolicited takeover offer or other acquisition proposal, even if unforeseen or unavoidable, and such party’s response thereto shall not be deemed an event of Force Majeure.

“ Governmental Authority ” means any entity exercising executive, legislative, judicial, regulatory or administrative or other similar functions of or pertaining to the government and any executive official thereof, including any governmental body, authority, agency, department, board, bureau, commission or other instrumentality whether federal, state, local, domestic, foreign or multinational (or any political subdivision thereof), and any tribunal, court or arbitrator(s) of competent jurisdiction.

“ Group ” means the MGM Group or the MGP Group, as the context requires.

“ Income Taxes ” shall mean any and all U.S. federal, state or local or foreign Taxes imposed or determined with reference to (i) gross or net income or profits (including, but not limited to, capital gains, gross receipts or minimum Tax, but not including any Transfer Taxes or property or ad valorem Taxes, which shall be governed by Section 2.3(b) and (c), respectively) or (ii) multiple bases, including corporate franchise, gross receipts, net worth, privilege, doing business or occupation taxes, if one of the bases is listed in clause (i).

“ Information ” means information, whether or not patentable or copyrightable, in written, oral, electronic or other tangible or intangible forms, stored in any medium, including studies, reports, records, books, contracts, instruments, surveys, discoveries, ideas, concepts, know-how, techniques, designs, specifications, drawings, blueprints, diagrams, models, prototypes, samples, flow charts, data, computer data, disks, diskettes, tapes, computer programs or other software, marketing plans, customer names, communications by or to attorneys (including attorney-client privileged communications), memoranda and other materials prepared by attorneys or under their direction (including attorney work product), and other technical, financial, employee or business information or data.

“ Initial Public Offering ” means the initial public offering of the MGP Shares.

“ Insurance ” means any product or service determined to constitute insurance, assurance or reinsurance by the Laws in effect in any jurisdiction in the United States of America.

“ Insurance Proceeds ” means those monies: (a) received by an insured from an insurance carrier; (b) paid by an insurance carrier on behalf of the insured; or (c) received (including by way of set off) from any third party in the nature of Insurance, contribution or indemnification in

 

3

respect of any Liability; in any such case net of any applicable premium adjustments (including reserves and retrospectively rated premium adjustments) and net of any costs or expenses incurred in the collection thereof.

“ Intellectual Property License Agreement ” means the Intellectual Property License Agreement in substantially the form attached hereto as Exhibit C , to be entered into by and between MGM and MGP.

“ IPO Prospectus ” means the prospectus or prospectuses included in the IPO Registration Statement, as amended or supplemented by any prospectus supplement and by all other amendments and supplements to any such prospectus, including post-effective amendments and all material incorporated by reference in such prospectus or prospectuses.

“ IPO Registration Statement ” means the registration statement on Form S-11 filed under the Securities Act (No. 333-210322) pursuant to which the offering of MGP Shares in the Initial Public Offering will be registered.

“ IRS ” means the United States Internal Revenue Service.

“ Law ” means any national, federal, foreign, supranational, state, provincial, local, or similar law (including common law), statute, code, order, ordinance, rule, regulation, treaty (including any income Tax treaty), license, permit, authorization, approval, consent, decree, injunction, binding judicial or administrative interpretation or other requirement, in each case, enacted, promulgated, issued, communicated, or entered by a Governmental Authority.

“ Liabilities ” means any and all debts, losses, damages, adverse claims, guarantees, liabilities, costs, expenses, Taxes, interest and obligations, whether accrued or fixed, absolute or contingent, liquidated or unliquidated, matured or unmatured, reserved or unreserved, direct or indirect, or determined or determinable, including those arising under any Law, claim (including any third Person product liability claim), demand, Action, whether asserted or unasserted, or order, writ, judgment, injunction, decree, stipulation, determination or award entered by or with any Governmental Authority and those arising under any contract, agreement, obligation, indenture, instrument, lease, promise, arrangement, release, warranty, commitment or undertaking, or any fines, damages or equitable relief that is imposed, whether in contract, tort, strict liability or otherwise, in each case, including all costs and expenses relating thereto.

“ Master Lease Agreement ” means the Master Lease Agreement in substantially the form attached hereto as Exhibit F , to be entered into by and between MGP Lessor, LLC, a Delaware limited liability company and MGM Lessee, LLC, a Delaware limited liability company.

“ MGM Business ” means (a) the business of operating any casinos, hotels, theaters or other facilities located at the real property of MGM and its Subsidiaries and the real property of MGP and its Subsidiaries and (b) owning and operating MGM’s Subsidiaries; provided , for the avoidance of doubt, that the MGM Business shall not include the business of (x) owning or leasing the real property of MGP and its Subsidiaries or (y) owning and operating MGP’s Subsidiaries.

 

4

“ MGM Group ” means MGM, each Subsidiary of MGM and each other Person (other than a member of the MGP Group) that is controlled directly or indirectly by MGM, in each case immediately after the Effective Time; provided , however , that no director, officer, employee, agent or other representative of any of the foregoing who is a natural person shall be deemed a member of the MGM Group.

“ MGP Business ” means (a) the business of owning or leasing the real property of MGP and its Subsidiaries and (b) owning and operating MGP’s Subsidiaries; provided , for the avoidance of doubt, that the MGP Business shall not include the business of (x) operating any casinos, hotels, theaters or other facilities located at the real property of MGP and its Subsidiaries or (y) owning and operating MGM’s Subsidiaries.

“ MGP Group ” means MGP, each Subsidiary of MGP (including the OP) and each other Person that is controlled directly or indirectly by MGP, in each case immediately after the Effective Time; provided , however , that no director, officer, employee, agent or other representative of any of the foregoing who is a natural person shall be deemed a member of the MGP Group.

“ MGP Shares ” means the Class A Common Shares (as defined in the Amended and Restated LLC Agreement) of MGP.

“ Parties ” means MGM, MGP and the OP.

“ Person ” means any individual, corporation, partnership, firm, joint venture, association, joint-stock company, trust, unincorporated organization, Governmental Authority or other entity.

“ Registration Rights Agreement ” means the Registration Rights Agreement in substantially the form attached hereto as Exhibit B , to be entered into by and among MGM, the OP and MGP.

“ REIT Real Property ” means “Leased Property” as such term is defined in the Master Lease Agreement.

“ SEC ” means the United States Securities and Exchange Commission.

“ Securities Act ” means the United States Securities Act of 1933, as amended, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the time that reference is made.

“ Security Interest ” means any mortgage, security interest, pledge, lien, charge, claim, option, right to acquire, voting or other restriction, right-of-way, covenant, condition, easement, encroachment, restriction on transfer, or other encumbrance of any nature whatsoever.

“ Stock ” means shares of capital stock (whether denominated as common stock or preferred stock), beneficial, partnership or membership interests, participations or other equivalents (regardless of how designated) of or in a corporation, partnership, limited liability company or business trust, whether voting or non-voting.

 

5

“ Subsidiary ” or “ subsidiary ” means, with respect to any Person, any corporation, limited liability company, joint venture or partnership of which such Person (a) beneficially owns, either directly or indirectly, more than fifty percent (50%) of (i) the total combined voting power of all classes of voting securities of such Person, (ii) the total combined equity interests, or (iii) the capital or profit interests, in the case of a partnership; or (b) otherwise has the power to vote, either directly or indirectly, sufficient securities to elect a majority of the board of directors or similar governing body; provided , that for purposes of this Agreement, (x) the OP and its Subsidiaries shall be treated as Subsidiaries of MGP (and not as Subsidiaries of MGM) and the OP and its Subsidiaries shall be treated as members of the MGP Group (and not as members of the MGM Group) and (y) MGP and its Subsidiaries shall not be treated as Subsidiaries of MGM and shall not be treated as members of the MGM Group.

“ Tax ” means (i) all taxes, charges, fees, duties, levies, imposts, or other similar assessments, imposed by any U.S. federal, state or local or foreign Governmental Authority, including, but not limited to, net income, gross income, gross receipts, excise, real property, personal property, sales, use, service, service use, license, lease, capital stock, transfer, recording, franchise, business organization, occupation, premium, environmental, windfall profits, profits, customs, duties, payroll, wage, withholding, social security, employment, unemployment, insurance, severance, workers compensation, excise, stamp, alternative minimum, estimated, value added, ad valorem, escheat, and other taxes, charges, fees, duties, levies, imposts, or other similar assessments, (ii) any interest, penalties or additions attributable thereto and (iii) all liabilities in respect of any items described in clauses (i) or (ii) payable by reason of assumption, transferee or successor liability, operation of Law or Treasury Regulation Section 1.1502-6(a) (or any predecessor or successor thereof or any analogous or similar provision under Law).

“ Tax Return ” means any report, return, election, notice, estimate, declaration, information statement and other forms and documents (including all schedules, exhibits and other attachments thereto and including all amendments thereof) relating to and filed or required to be filed with a Taxing authority in connection with any Taxes (including estimated Taxes).

“ Transactions ” means, collectively, (i) the Formation Transaction (including, without limitation, the Contribution and the Initial Public Offering) and (ii) all other transactions contemplated by this Agreement and any Transaction Document.

“ Transfer Documents ” means the documents executed by MGM, MGP or their applicable Affiliates or Subsidiaries in connection with the transactions contemplated by Section 2.1 or as otherwise contemplated by the Plan of Contribution.

“ Treasury Regulations ” means the final and temporary (but not proposed) income Tax regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“ Underwriters ” means the managing underwriters for the Initial Public Offering.

“ Underwriting Agreement ” means the Underwriting Agreement entered into on the date hereof by and among MGP, OP and the Underwriters in connection with the offering of MGP Shares by MGP in the Initial Public Offering.

 

6

1.2 Other Terms . For purposes of this Agreement, the following terms have the meanings set forth in the sections indicated.

 

Term

 

Section

Agreement

  Preamble

Amended and Restated LLC Agreement

  4.3

Closing

  4.1

Closing Date

  4.1

Contribution

  Recitals

CPR

  8.2

CPR Arbitration Rules

  8.3(a)

Dispute

  8.1(a)

Excluded Assets

  2.2(b)

Excluded Liabilities

  2.3(d)

Formation Transaction

  Recitals

Holder

  8.1(e)

Indemnified Party

  6.5(a)

Indemnifying Party

  6.5(a)

Indemnity Payment

  6.5(a)

MGM

  Preamble

MGM Confidential Information

  7.2(b)

MGM Indemnified Parties

  6.2

MGP

  Preamble

MGP Assets

  2.2(a)

MGP Confidential Information

  7.2(a)

MGP Indemnified Parties

  6.3

MGP Liabilities

  2.3(a)

OP

  Preamble

Plan of Contribution

  2.1(a)

Proration Period

  2.3(c)

Public Information

  5.1

Qualifying Income

  6.7(a)

REIT

  6.7(a)

Representatives

  7.2(a)

Special Damages

  6.9

Specified REIT Requirements

  6.7(a)

Third-Party Claim

  6.6(a)

Transaction Documents

  4.2(b)

Transfer Taxes

  2.3(b)

ARTICLE II

THE CONTRIBUTION

2.1 Transfer of Assets; Assumption of Liabilities; Consideration .

 

7

(a) Prior to the Initial Public Offering, MGM shall effectuate the plan and reorganization set forth on Schedule 2.1(a) (such plan and reorganization being referred to herein as the “ Plan of Contribution ”). In accordance with the Plan of Contribution, MGM, MGP and the OP shall cause the following:

(i) except as may be agreed among the Parties, MGM shall, and shall cause its applicable Subsidiaries to, contribute, assign, transfer, convey and deliver to the OP or certain Subsidiaries designated by the OP who are or will become members of the MGP Group, and the OP or such Subsidiaries shall accept from MGM and its applicable Subsidiaries, all of MGM’s and such Subsidiaries’ respective direct or indirect right, title and interest in and to all MGP Assets; and

(ii) except as may be agreed among the Parties, the OP and certain Subsidiaries designated by the OP who are or will become members of the MGP Group shall accept, assume and agree to faithfully perform, discharge when due and fulfill all MGP Liabilities, in accordance with their respective terms. The OP and such Subsidiaries shall be responsible for all MGP Liabilities, regardless of when or where such MGP Liabilities arose or arise, or whether the facts on which they are based occurred prior to or subsequent to the Closing Date, regardless of where or against whom such MGP Liabilities are asserted or determined (including, subject to Section 6.1(b) , any MGP Liabilities arising out of claims made by MGM’s or MGP’s respective directors, officers, employees, agents, Subsidiaries or Affiliates against any member of the MGM Group or the MGP Group) or whether asserted or determined prior to the date hereof, and regardless of whether arising from or alleged to arise from negligence, recklessness, violation of Law, fraud or misrepresentation by any member of the MGM Group or the MGP Group, or any of their respective directors, officers, employees, agents, Subsidiaries or Affiliates.

(b) In furtherance of the contribution, assignment, transfer, conveyance and delivery of MGP Assets and the assumption of MGP Liabilities in accordance with Section 2.1(a) , on the date that such MGP Assets are contributed, assigned, transferred, conveyed or delivered or such MGP Liabilities are assumed (i) MGM shall execute and deliver, and shall cause its Subsidiaries to execute and deliver such bills of sale, deeds, Stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent necessary to evidence the transfer, conveyance and assignment of all of MGM’s and its Subsidiaries’ (other than MGP and its Subsidiaries) right, title and interest in and to MGP Assets to MGP and its Subsidiaries, (ii) MGM and its applicable Subsidiaries shall each deliver to the OP a properly executed affidavit prepared in accordance with Treasury Regulation Section 1.1445-2(b) certifying as to MGM’s or such Subsidiary’s non-foreign status, as applicable, and any similar affidavits required under applicable state law and (iii) the OP shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such assumptions of contracts and other instruments of assumption as and to the extent necessary to evidence the valid and effective assumption of MGP Liabilities by the OP and its Subsidiaries.

(c) If at any time or from time to time (whether prior to or after the Effective Time), any Party (or any member of such Party’s respective Group), shall receive or otherwise possess any Asset or Liability that is allocated to any other Person pursuant to this Agreement or

 

8

any Transaction Document, such Party shall, as applicable, promptly transfer or accept, or cause to be transferred or accepted, such Asset or Liability, as the case may be, to the Person entitled to such Asset or responsible for such Liability, as the case may be. Prior to any such transfer, the Person receiving, possessing or responsible for such Asset or Liability shall be deemed to be holding such Asset or Liability, as the case may be, in trust for any such other Person.

(d) MGP hereby waives compliance by each and every member of the MGM Group with the requirements and provisions of any “bulk-sale” or “bulk-transfer” Laws of any jurisdiction that may otherwise be applicable with respect to the transfer or sale of any or all MGP Assets to any member of the MGP Group.

2.2 MGP Assets .

(a) For purposes of this Agreement, “ MGP Assets ” shall mean (without duplication) the following, which, for the avoidance of doubt, shall be held by the OP or certain Subsidiaries of the OP following the consummation of the transactions contemplated by the Plan of Contribution or otherwise in accordance with this Article II :

(i) the REIT Real Property;

(ii) all issued and outstanding Stock of the entities listed on Schedule 2.2(a)(ii) ; and

(iii) any and all Assets owned or held immediately prior to the Effective Time by MGM or any of its Subsidiaries that are used primarily in the MGP Business. The intention of this clause (iv) is only to rectify any inadvertent omission of transfer or conveyance of any Assets that, had the Parties given specific consideration to such Asset as of the date hereof, would have otherwise been classified as an MGP Asset. In addition, no Asset shall be deemed to be a MGP Asset solely as a result of this clause (iv) if such Asset is within the category or type of Asset expressly covered by the terms of any Transaction Document unless the party claiming entitlement to such Asset can establish that the omission of the transfer or conveyance of such Asset was inadvertent, and no Asset shall be deemed a MGP Asset solely as a result of this clause (iv) unless a claim with respect thereto is made by MGP on or prior to the second anniversary of the Closing Date.

Notwithstanding the foregoing, MGP Assets shall not in any event include Excluded Assets referred to in Section 2.2(b) .

(b) For the purposes of this Agreement, “ Excluded Assets ” shall mean (without duplication), (i) any and all Assets of the MGM Group as of the Effective Time that are not expressly contemplated by this Agreement or any Transaction Document to be MGP Assets and (ii) those Assets listed or described on Schedule 2.2(b) .

2.3 MGP Liabilities .

(a) For the purposes of this Agreement, “ MGP Liabilities ” shall mean (without duplication) the following, which, for the avoidance of doubt, shall be assumed by the

 

9

OP or certain Subsidiaries of the OP following the consummation of the transactions contemplated by the Plan of Contribution or otherwise in accordance with this Article II :

(i) all Liabilities that are expressly provided by this Agreement or any Transaction Document as Liabilities assumed or to be assumed by any member of the MGP Group, and all agreements, obligations and Liabilities of any member of the MGP Group under this Agreement or any of the Transaction Documents; and

(ii) except as otherwise limited by this Agreement or any Transaction Document, including Section 32.4 of the Master Lease Agreement, all Liabilities to the extent relating to, arising out of or resulting from any MGP Assets or the operation and conduct of the MGP Business (other than any Transfer Taxes for which the MGM Group is responsible pursuant to Section 2.3(b) and Taxes apportioned to the MGM Group pursuant to Section 2.3(c)), whether arising before, on or after the Effective Time.

(b) Notwithstanding anything to the contrary contained in this Agreement but without prejudice to the terms of the Master Lease, the MGM Group shall be responsible for all transfer, sales, use, documentary, filing, recording, value added, stamp and similar Taxes, fees and governmental charges payable in connection with the transactions contemplated by this Agreement (“ Transfer Taxes ”). The MGM Group shall file all necessary documents (including all Tax Returns) with respect to all such amounts.

(c) Notwithstanding anything to the contrary contained in this Agreement, property and ad valorem Taxes (other than Transfer Taxes) imposed upon or assessed directly against MGP Assets (including real estate Taxes, personal property Taxes and similar Taxes) for any Taxable period which includes but does not end on the Closing Date (the “ Proration Period ”) will be apportioned and prorated between the MGM Group and the OP as of the Closing Date, with the MGM Group bearing the expense of its proportionate share of such Taxes, which shall be equal to the product obtained by multiplying (i) a fraction, the numerator being the number of days in the Proration Period prior to the Closing Date and the denominator being the total number of days in the Proration Period, by (ii) the amount of such Taxes, and the OP shall bear the remaining portion of such Taxes; and any refunds of such Taxes for the Taxable period in which the Closing Date occurs shall be apportioned between the MGM Group and the OP in a like manner. If the OP, on the one hand, or the MGM Group, on the other hand, receives any such refunds after the Closing Date, the OP or the applicable member of the MGM Group (as the case may be) shall remit the applicable portion of such refunds to the other party promptly after receipt thereof.

(d) For the purposes of this Agreement, “ Excluded Liabilities ” shall mean (without duplication) any and all Liabilities of MGM and its Subsidiaries as of the Effective Time that are not expressly contemplated by this Agreement or any Transaction Document to be MGP Liabilities. For the avoidance of doubt, Excluded Liabilities shall include all Income Taxes of the MGM Group for any Taxable period.

(e) Any Liabilities of any member of the MGM Group not expressly referenced in Section 2.3(a) above are Excluded Liabilities and all Excluded Liabilities shall not be MGP Liabilities.

 

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2.4 DISCLAIMER OF REPRESENTATIONS AND WARRANTIES . MGM (ON BEHALF OF ITSELF AND EACH MEMBER OF THE MGM GROUP), MGP (ON BEHALF OF ITSELF AND EACH MEMBER OF THE MGP GROUP) AND THE OP UNDERSTAND AND AGREE THAT, EXCEPT AS EXPRESSLY SET FORTH HEREIN OR IN ANY TRANSACTION DOCUMENT, NO PARTY TO THIS AGREEMENT, ANY TRANSACTION DOCUMENT OR ANY OTHER AGREEMENT OR DOCUMENT CONTEMPLATED BY THIS AGREEMENT OR ANY TRANSACTION DOCUMENT OR OTHERWISE, IS REPRESENTING OR WARRANTING OR HAS MADE ANY REPRESENTATION OR WARRANTY IN ANY WAY AS TO THE ASSETS, BUSINESSES OR LIABILITIES TRANSFERRED OR ASSUMED AS CONTEMPLATED HEREBY OR THEREBY, AS TO ANY CONSENTS OR APPROVALS REQUIRED IN CONNECTION HEREWITH OR THEREWITH, AS TO THE VALUE OF OR FREEDOM FROM ANY SECURITY INTERESTS OF, OR ANY OTHER MATTER CONCERNING, ANY ASSETS, BUSINESSES OR LIABILITIES OF SUCH PARTY, OR AS TO THE ABSENCE OF ANY DEFENSES OR RIGHT OF SETOFF OR FREEDOM FROM COUNTERCLAIM WITH RESPECT TO ANY CLAIM OR OTHER ASSET, INCLUDING ANY ACCOUNTS RECEIVABLE, OF ANY PARTY, OR AS TO THE LEGAL SUFFICIENCY OF ANY ASSIGNMENT, DOCUMENT OR INSTRUMENT DELIVERED HEREUNDER OR THEREUNDER TO CONVEY TITLE TO ANY ASSET OR THING OF VALUE UPON THE EXECUTION, DELIVERY AND FILING HEREOF OR THEREOF. EXCEPT AS MAY EXPRESSLY BE SET FORTH HEREIN OR IN ANY TRANSACTION DOCUMENT, ALL SUCH ASSETS ARE BEING OR HAVE BEEN TRANSFERRED ON AN “AS IS,” “WHERE IS” BASIS (AND, IN THE CASE OF ANY REAL PROPERTY, BY MEANS OF A QUITCLAIM OR SIMILAR FORM DEED OR CONVEYANCE) AND THE RESPECTIVE TRANSFEREES SHALL BEAR THE ECONOMIC AND LEGAL RISKS THAT (I) ANY CONVEYANCE SHALL PROVE TO BE INSUFFICIENT TO VEST IN THE TRANSFEREE GOOD TITLE, FREE AND CLEAR OF ANY SECURITY INTEREST, AND (II) ANY NECESSARY CONSENTS OR GOVERNMENTAL APPROVALS ARE NOT OBTAINED OR THAT ANY REQUIREMENTS OF LAWS OR JUDGMENTS ARE NOT COMPLIED WITH.

2.5 Transfer of Assets and Assumption of Liabilities from and after the Effective Time .

(a) To the extent any Excluded Asset is transferred or assigned to, or any Excluded Liability is assumed by, a member of the MGP Group at the Effective Time or is owned or held by a member of the MGP Group after the Effective Time, and to the extent any MGP Asset has not been transferred or assigned to, or any MGP Liability has not been assumed by, a member of the MGP Group at the Effective Time or is owned or held by a member of the MGM Group after the Effective Time, from and after the Effective Time:

(i) the OP or MGM, as applicable, shall, and shall cause its applicable Subsidiaries to, promptly assign, transfer, convey and deliver to the other party or certain of its Subsidiaries designated by such party, and the OP or MGM, or such Subsidiaries, as applicable, shall accept from MGM or the OP and such applicable Subsidiaries, all of MGM’s or the OP’s or such Subsidiaries’ respective right, title and interest in and to such Excluded Assets or MGP Assets; and

 

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(ii) MGM or the OP, as applicable, or certain Subsidiaries of MGM or the OP designated by such party, shall promptly accept, assume and agree to faithfully perform, discharge and fulfill all such Liabilities of MGM or the OP in accordance with their respective terms.

(b) In furtherance of the assignment, transfer, conveyance and delivery of Assets and the assumption of Liabilities set forth in this Section 2.5 , and without any additional consideration therefor: (A) the applicable party shall execute and deliver, and shall cause its Subsidiaries to execute and deliver, such bills of sale, deeds, Stock powers, certificates of title, assignments of contracts and other instruments of transfer, conveyance and assignment as and to the extent necessary to evidence the transfer, conveyance and assignment of all of such party’s and its Subsidiaries’ right, title and interest in and to the applicable Assets to the other party and its Subsidiaries, and (B) the applicable party shall execute and deliver such assumptions of contracts and other instruments of assumption as and to the extent necessary to evidence the valid and effective assumption of the applicable Liabilities by such party.

ARTICLE III

THE INITIAL PUBLIC OFFERING

3.1 The Initial Public Offering . MGP shall (i) consult with, and cooperate in all respects with and take all actions reasonably requested by, MGM in connection with the Initial Public Offering; (ii) at the direction of MGM, promptly take any and all actions necessary or desirable to consummate the Initial Public Offering as contemplated by the IPO Registration Statement and the Underwriting Agreement; and (iii) subscribe to purchase Common Units of the OP with the net proceeds from the Initial Public Offering.

ARTICLE IV

INTERCOMPANY TRANSACTIONS AS OF THE CLOSING DATE

4.1 Time and Place of Closing . Subject to the terms and conditions of this Agreement, all transactions contemplated by this Agreement shall be consummated at a closing (the “ Closing ”) to be held at the offices of Weil, Gotshal & Manges LLP, 767 Fifth Avenue, New York, New York 10153, at 10:00 a.m. New York City Time, on or prior to the date on which the Initial Public Offering closes or at such other place or at such other time or on such other date as the Parties may agree upon in writing (the day on which the Closing takes place being the “ Closing Date ”).

4.2 Closing Transactions . At or prior to the Closing:

(a) The Contribution contemplated by Article II shall be effected.

(b) The appropriate Parties hereto shall enter into, and (as necessary) shall cause their respective Subsidiaries to enter into, the agreements set forth below (collectively, the “ Transaction Documents ”):

(i) the Corporate Services Agreement;

 

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(ii) the Registration Rights Agreement;

(iii) the Intellectual Property License Agreement;

(iv) the Master Lease Agreement; and

(v) the Transfer Documents.

4.3 Amended and Restated LLC Agreement; Amended and Restated Limited Partnership Agreement . At or prior to the Closing, MGM and MGP shall each take all necessary action that may be required to provide for (i) the adoption by MGP of the Amended and Restated Limited Liability Company Agreement in the form attached hereto as Exhibit D (the “ Amended and Restated LLC Agreement ”); and (ii) the adoption by the OP of the Amended and Restated Limited Partnership Agreement.

4.4 Approvals and Notifications . To the extent that the transfer or assignment of any Assets and the assumption of any Liabilities in accordance with the Plan of Contribution requires any Approvals or Notifications, the Parties shall use their commercially reasonable efforts to obtain or make, or cause to be obtained or made, such Approvals or Notifications as soon as reasonably practicable.

ARTICLE V

FINANCIAL AND OTHER INFORMATION

5.1 Public Information . Each Party shall cooperate, and cause its accountants and advisors to cooperate, with the other Parties to the extent reasonably requested by any other Party in the preparation of press releases, public earnings releases, Quarterly Reports on Form 10-Q, Annual Reports to Shareholders, Annual Reports on Form 10-K, any Current Reports on Form 8-K and any amendments thereto and any other proxy, information and registration statements, reports, notices, prospectuses and any other filings made by MGM or MGP or any of their respective Subsidiaries with the SEC, any national securities exchange or otherwise made publicly available (collectively, “ Public Information ”). Each Party agrees to provide the other Parties with all information that any such other Party reasonably requests in connection with any such Public Information or that, in the judgment of such other Party, is required to be disclosed therein under any Law. Each Party agrees to use reasonable efforts to provide such information in a timely manner to enable the other Parties, as applicable, to prepare, print and release such Public Information on such date as the requesting Party shall determine. If and to the extent reasonably requested by another Party, MGM or MGP, as applicable, shall diligently and promptly review all drafts of such Public Information and prepare in a diligent and timely fashion any portion of such Public Information pertaining to MGM or MGP, as applicable, or their respective Subsidiaries. Prior to any printing or public release of any Public Information, an appropriate executive officer of MGM or MGP, as applicable, shall, if requested by the Party printing or releasing such Public Information, certify and represent that the information provided by MGM or MGP, as applicable, in such Public Information is accurate, true and correct in all material respects.

5.2 Agreement for Exchange of Information .

 

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(a) Each Party, on behalf of itself and its respective Group, agrees to provide, or cause to be provided, to the other Group, at any time before or after the Closing Date, as soon as reasonably practicable after written request therefor, any Information in the possession or under the control of such respective Group which the requesting Party reasonably needs (i) to comply with reporting, disclosure, filing or other requirements imposed on the requesting Party or a member of its Group (including under applicable securities or Tax Laws) or by a Governmental Authority having jurisdiction over the requesting Party or such member of its Group, (ii) for use in any other judicial, regulatory, administrative, Tax or other proceeding or in order to satisfy audit, accounting, claims, regulatory, litigation, Tax or other similar requirements, in each case other than claims or allegations that one Party to this Agreement has against the other, or (iii) subject to the foregoing clause (ii), to comply with its obligations under this Agreement or any Transaction Document; provided, however, that in the event that any Party determines that any such provision of Information could be commercially detrimental, violate any Law or agreement, or waive any attorney-client privilege, the Parties shall take all reasonable measures to permit the compliance with such obligations in a manner that avoids any such harm or consequence.

(b) Any Information owned by one Group that is provided to a requesting Party pursuant to Section 5.2(a) shall be deemed to remain the property of the providing Party, except where such Information is an Asset of the requesting Party pursuant to the provisions of this Agreement or any Transaction Document. Unless specifically set forth herein, nothing contained in this Agreement shall be construed as granting or conferring rights of license or otherwise in any Information requested or provided pursuant to Section 5.2(a) .

(c) The Party requesting Information agrees to reimburse the other Party for the reasonable out-of-pocket costs and expenses, if any, of creating, gathering and copying such Information to the extent that such costs are incurred in connection with such other Party’s provision of Information in response to the requesting Party.

(d) The rights and obligations granted under Section 5.2(a) are subject to any specific limitations, qualifications or additional provisions on the sharing, exchange, retention or confidential treatment of Information set forth in any Transaction Document, including Sections 23.1(c) and 23.2 of the Master Lease Agreement.

5.3 Record Retention .

(a) To facilitate the possible exchange of Information pursuant to this Article V and other provisions of this Agreement after the Effective Time, the Parties agree to use their commercially reasonable efforts to retain all Information in their respective possession or control in accordance with the policies or ordinary course practices of MGM in effect immediately prior to the Effective Time or such other policies or practices as may be reasonably adopted by the appropriate Party after the Effective Time.

(b) Except in accordance with its, or its applicable Subsidiaries’, policies and ordinary course practices, no Party will destroy, or permit any of its Subsidiaries to destroy, any Information that would, in accordance with such policies or ordinary course practices, be archived or otherwise filed in a centralized filing system by such Party or its applicable

 

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Subsidiaries; in furtherance of the foregoing, no Party will destroy, or permit any of its Subsidiaries to destroy, any Information required to be retained by applicable Law.

(c) In the event of any Party’s or any of its Subsidiaries’ inadvertent failure to comply with its applicable document retention policies as required under this Section 5.3 , such Party shall be liable to the other Parties solely for the amount of any monetary fines or penalties imposed or levied against such other Party by a Governmental Authority (which fines or penalties shall not include any Liabilities asserted in connection with the claims underlying the applicable Action, other than fines or penalties resulting from any claim of spoliation) as a result of such other Party’s inability to produce Information caused by such inadvertent failure and, notwithstanding Sections 6.2 and 6.3 , shall not be liable to such other Party for any other Liabilities.

5.4 Liability . No Party shall have any liability to any other Party in the event that any Information exchanged or provided pursuant to this Agreement which is an estimate or forecast, or which is based on an estimate or forecast, is found to be inaccurate in the absence of willful misconduct by the Party providing such Information.

5.5 Production of Witnesses; Records; Cooperation .

(a) From and after the Effective Time, except in the case of an adversarial Action by one Party against another Party, each Party shall use its commercially reasonable efforts to make available to each other Party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such Person (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents may reasonably be required in connection with any Action in which the requesting Party may from time to time be involved, regardless of whether such Action is a matter with respect to which indemnification may be sought hereunder. The requesting Party shall bear all reasonable out-of-pocket costs and expenses in connection therewith.

(b) If an Indemnifying Party, in accordance with the procedures set forth in Section 6.6 , chooses to defend or to seek to compromise or settle any Third-Party Claim, the Indemnified Party shall use commercially reasonable efforts to make available to such Indemnifying Party, upon written request, the former, current and future directors, officers, employees, other personnel and agents of the members of its respective Group as witnesses and any books, records or other documents within its control or which it otherwise has the ability to make available, to the extent that any such Persons (giving consideration to business demands of such directors, officers, employees, other personnel and agents) or books, records or other documents may reasonably be required in connection with such defense, settlement or compromise, or the prosecution, evaluation or pursuit thereof, as the case may be, and shall otherwise cooperate in such defense, settlement or compromise, or such prosecution, evaluation or pursuit, as the case may be. The Indemnifying Party shall bear all reasonable out-of-pocket costs and expenses in connection therewith.

 

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(c) For the avoidance of doubt, the provisions of this Section 5.5 are in furtherance of the provisions of Section 5.2 and shall not be deemed to in any way limit or otherwise modify the Parties’ rights and obligations under Section 5.2 .

5.6 Privileged Matters .

(a) The Parties recognize that legal and other professional services that have been and will be provided prior to and after the Effective Time (including, after the Effective Time, pursuant to the Corporate Services Agreement or otherwise) have been and will be rendered for the collective benefit of each of the members of the MGM Group and the MGP Group, and that each of the members of the MGM Group and the MGP Group should be deemed to be the client with respect to such services for the purposes of asserting all privileges which may be asserted under applicable Law in connection therewith.

(b) The Parties agree as follows:

(i) MGM shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the MGM Business and not to the MGP Business, whether or not the privileged Information is in the possession or under the control of any member of the MGM Group or any member of the MGP Group. MGM shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any Excluded Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the MGM Group or any member of the MGP Group; and

(ii) MGP shall be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to the MGP Business and not to the MGM Business, whether or not the privileged Information is in the possession or under the control of any member of the MGP Group or any member of the MGM Group. MGP shall also be entitled, in perpetuity, to control the assertion or waiver of all privileges in connection with any privileged Information that relates solely to any MGP Liabilities resulting from any Actions that are now pending or may be asserted in the future, whether or not the privileged Information is in the possession or under the control of any member of the MGP Group or any member of the MGM Group.

(c) Subject to the restrictions set forth in this Section 5.6 , the Parties agree that they shall have a shared privilege, each with equal right to assert or waive any such shared privilege, with respect to all privileges not allocated pursuant to Section 5.6(b) and all privileges relating to any Actions or other matters that involve both the MGM Group and the MGP Group and in respect of which the Parties have Liabilities under this Agreement, and that no such shared privilege or immunity may be waived by any Party without the consent of the other Parties.

 

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(d) In the event of any Actions between MGM, on the one hand, and MGP, on the other hand, or any members of their respective Groups, any Party may waive a privilege in which another Party or member of such other Party’s Group has a shared privilege, without obtaining consent pursuant to Section 5.6(c) ; provided , that such waiver of a shared privilege shall be effective only as to the use of Information with respect to the Action between or among the Parties and/or the applicable members of their respective Groups, and shall not operate as a waiver of the shared privilege with respect to any third Person.

(e) If any dispute arises between MGM, on the one hand, and MGP, on the other hand, or any members of their respective Groups regarding whether a privilege should be waived to protect or advance the interests of either the MGM Group or the MGP Group, each Party agrees that it shall (i) negotiate with the other Party in good faith, (ii) endeavor to minimize any prejudice to the rights of the other Party and (iii) not unreasonably withhold, condition or delay consent to any request for waiver by the other Party. Further, each Party specifically agrees that it will not withhold its consent to the waiver of a privilege for any purpose except to protect its own legitimate interests.

(f) In furtherance of the Parties’ agreement under this Section 5.6 , MGM and MGP shall, and shall cause applicable members of their respective Group to, maintain their respective separate and joint privileges, including by executing joint defense and common interest agreements where necessary or useful for this purpose.

ARTICLE VI

RELEASE; INDEMNIFICATION

6.1 Release of Pre-Closing Claims .

(a) Except as provided in Section 6.1(c) or otherwise in this Agreement or any Transaction Document, effective as of the Effective Time, MGP does hereby, for itself and each other member of the MGP Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Effective Time have been directors, officers, agents or employees of any member of the MGP Group (in each case, in their respective capacities as such), remise, release and forever discharge MGM and the other members of the MGM Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Effective Time have been stockholders, members, directors, officers, agents or employees of any member of the MGM Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising under any contract or agreement, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Effective Time, including in connection with the Transactions and all other activities to implement the Contribution, the Initial Public Offering and any of the other transactions contemplated hereunder and under the Transaction Documents.

 

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(b) Except as provided in Section 6.1(c) or otherwise in this Agreement or any Transaction Document, effective as of the Effective Time, MGM does hereby, for itself and each other member of the MGM Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Effective Time have been stockholders, members, directors, officers, agents or employees of any member of the MGM Group (in each case, in their respective capacities as such), remise, release and forever discharge MGP, the respective members of the MGP Group, their respective Affiliates, successors and assigns, and all Persons who at any time prior to the Effective Time have been stockholders, members, directors, officers, agents or employees of any member of the MGP Group (in each case, in their respective capacities as such), and their respective heirs, executors, administrators, successors and assigns, from any and all Liabilities whatsoever, whether at Law or in equity (including any right of contribution), whether arising under any contract or agreement, by operation of Law or otherwise, existing or arising from any acts or events occurring or failing to occur or alleged to have occurred or to have failed to occur or any conditions existing or alleged to have existed on or before the Effective Time, including in connection with the Transactions and all other activities to implement the Contribution, the Initial Public Offering and any of the other transactions contemplated hereunder and under the Transaction Documents.

(c) Nothing contained in Section 6.1(a) or Section 6.1(b) shall impair any right of any Person to enforce this Agreement or any Transaction Document, in each case, in accordance with its terms. Nothing contained in Section 6.1(a) or Section 6.1(b) shall release any Person from:

(i) any Liability, contingent or otherwise, assumed, transferred, assigned or allocated to the Group of which such Person is a member in accordance with, or any other Liability of any member of any Group under, this Agreement or any Transaction Document;

(ii) any Liability that the MGM Group and the MGP Group may have with respect to indemnification or contribution pursuant to this Agreement or otherwise, including for claims brought against the MGM Group and the MGP Group by third Persons (which third Person claims shall be governed by the provisions of this Article VI and, if applicable, the appropriate provisions of the Transaction Documents).

In addition, nothing contained in Section 6.1(a) shall release MGM or any member of the MGM Group from indemnifying and advancing expenses to any director, officer or employee of MGP who was or is a director, officer or employee of any member of the MGM Group or any of their Affiliates, to the extent such director, officer or employee is or becomes a named defendant in any Action with respect to which he or she was or is entitled to such indemnification or advancement of expenses pursuant to then existing obligations; provided , however , that if the underlying obligation giving rise to such Action is an MGP Liability, then the OP shall indemnify, defend and hold harmless MGM and each member of the MGM Group, as applicable, from and against any and all Liabilities relating to such obligation.

(d) MGP shall not make, and shall not permit any member of the MGP Group to make, any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification, against MGM or any member of the

 

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MGM Group, or any other Person released pursuant to Section 6.1(a) , with respect to any Liabilities released pursuant to Section 6.1(a) . MGM shall not, and shall not permit any member of the MGM Group, to make any claim or demand, or commence any Action asserting any claim or demand, including any claim of contribution or any indemnification against MGP or any member of the MGP Group, or any other Person released pursuant to Section 6.1(b) , with respect to any Liabilities released pursuant to Section 6.1(b) .

(e) It is the intent of each of MGM and MGP, by virtue of the provisions of this Section 6.1 , to provide for a full and complete release and discharge of all Liabilities existing or arising from all acts and events occurring or failing to occur or alleged to have occurred or to have failed to occur and all conditions existing or alleged to have existed on or before the Effective Time, between or among MGP or any member of the MGP Group and their respective directors, officers, agents or employees, on the one hand, and MGM or any member of the MGM Group and their respective directors, officers, agents or employees, on the other hand (including any contractual agreements or arrangements existing or alleged to exist between or among any such members on or before the Closing Date), in each case, except as expressly set forth in Sections 6.1(a) , (b)  and (c) .

6.2 General Indemnification by the OP . Except (i) as provided in Section 6.5 or (ii) as required by applicable Law, the OP shall indemnify, defend and hold harmless each member of the MGM Group and each of their respective directors, officers and employees, each Person, if any, who controls any member of the MGM Group (other than members of the MGP Group) within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “ MGM Indemnified Parties ”), from and against any and all Liabilities of the MGM Indemnified Parties relating to, arising out of or resulting from any of the following items (without duplication):

(a) any MGP Liability, or the failure of any member of the MGP Group or any other Person to pay, perform or otherwise promptly discharge any MGP Liabilities in accordance with its respective terms, whether prior to, on or after the Closing Date;

(b) any breach by any member of the MGP Group of this Agreement or any of the Transaction Documents (other than the Master Lease Agreement); and

(c) any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, with respect to all information (1) contained in the IPO Registration Statement or IPO Prospectus (other than information provided by MGM to MGP specifically for inclusion in the IPO Registration Statement or IPO Prospectus) or (2) that is either furnished to any of the MGM Indemnified Parties by any member of the MGP Group or incorporated by reference by any MGM Indemnified Party from any Public Information of MGP or any other document filed with the SEC by any member of the MGP Group pursuant to the Securities Act or the Exchange Act.

 

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6.3 General Indemnification by the MGM Group . Except (i) as provided in Section 6.5 or (ii) as required by applicable Law, MGM shall indemnify, defend and hold harmless each member of the MGP Group and each of their respective directors, officers and employees, and each of the heirs, executors, successors and assigns of any of the foregoing (collectively, the “ MGP Indemnified Parties ”), from and against any and all Liabilities of the MGP Indemnified Parties relating to, arising out of or resulting from any of the following items (without duplication):

(a) any Excluded Liability or any Liability of a member of the MGM Group other than MGP Liabilities, or the failure of any member of the MGM Group or any other Person to pay, perform or otherwise promptly discharge any Liabilities of the MGM Group other than MGP Liabilities, whether prior to or after the Closing Date or the date hereof;

(b) any breach by any member of the MGM Group of this Agreement or any of the Transaction Documents (other than the Master Lease Agreement); and

(c) any untrue statement or alleged untrue statement of a material fact or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading, with respect to all information (1) contained in the IPO Registration Statement or IPO Prospectus, in each case, provided by MGM to MGP specifically for inclusion therein to the extent such information pertains to the MGM Group or (2) that is either furnished to any member of the MGP Indemnified Parties by any member of the MGM Group or incorporated by reference by any MGP Indemnified Party from any Public Information of MGM or any other document filed with the SEC by any member of the MGM Group pursuant to the Securities Act or the Exchange Act.

6.4 Contribution .

(a) If the indemnification provided for in this Article VI is unavailable or insufficient to hold harmless an Indemnified Party under Section 6.2(c) or Section 6.3(c) in respect of any Liabilities referred to therein, then each Indemnifying Party shall contribute to the amount paid or payable by such Indemnified Party as a result of such Liabilities (or actions in respect thereof) in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and the Indemnified Party in connection with the actions which resulted in Liabilities as well as any other relevant equitable considerations. The relative fault of such Indemnifying Party and Indemnified Party shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by such Indemnifying Party or Indemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission.

(b) MGM and the OP agree that it would not be just and equitable if any contribution pursuant to this Section 6.4 were determined by a pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (a) above. The amount paid or payable by an Indemnified Party as a result of the Liabilities referred to in paragraph (a) above shall be deemed to include, subject to the

 

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limitations set forth above, any legal or other fees or expenses reasonably incurred by such Indemnified Party in connection with investigating any claim or defending any Action.

6.5 Indemnification Obligations Net of Insurance Proceeds and Other Amounts .

(a) Any Liability subject to indemnification or contribution pursuant to this Article VI will be net of Insurance Proceeds that actually reduce the amount of the Liability. Accordingly, the amount which any party (an “ Indemnifying Party ”) is required to pay to any Person entitled to indemnification hereunder (an “ Indemnified Party ”) will be reduced by any Insurance Proceeds theretofore actually recovered by or on behalf of the Indemnified Party in respect of the related Liability. If an Indemnified Party receives a payment (an “ Indemnity Payment ”) required by this Agreement from an Indemnifying Party in respect of any Liability and subsequently receives Insurance Proceeds, then the Indemnified Party will pay to the Indemnifying Party an amount equal to such Insurance Proceeds but not exceeding the amount of the Indemnity Payment paid by the Indemnifying Party in respect of such Liability.

(b) An insurer who would otherwise be obligated to pay any claim shall not be relieved of the responsibility with respect thereto or, solely by virtue of the indemnification provisions hereof, have any subrogation rights with respect thereto. The Indemnified Party shall use its commercially reasonable efforts to seek to collect or recover any third-party Insurance Proceeds (other than Insurance Proceeds under an arrangement where future premiums are adjusted to reflect prior claims in excess of prior premiums) to which the Indemnified Party is entitled in connection with any Liability for which the Indemnified Party seeks indemnification pursuant to this Article VI ; provided , that the Indemnified Party’s inability to collect or recover any such Insurance Proceeds shall not limit the Indemnifying Party’s obligations hereunder.

6.6 Procedures for Indemnification of Third-Party Claims .

(a) If an Indemnified Party receives written notice that a Person (including any Governmental Authority) that is not a member of the MGM Group or the MGP Group has asserted any claim or commenced any Action (collectively, a “ Third-Party Claim ”) that may implicate an Indemnifying Party’s obligation to indemnify pursuant to Section 6.2 or Section 6.3 , or any other Section of this Agreement or any Transaction Document, such Indemnified Party shall give such Indemnifying Party written notice thereof as promptly as practicable (and no later than within twenty (20) days or sooner, if the nature of the Third-Party Claim requires) after becoming aware of such Third-Party Claim. Any such notice shall describe the Third-Party Claim in reasonable detail and include copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third-Party Claim. Notwithstanding the foregoing, the failure of any Indemnified Party or other Person to provide notice in accordance with this Section 6.6(a) shall not relieve the Indemnifying Party of its obligations under this Article VI , except to the extent that such Indemnifying Party is actually and materially prejudiced by such failure to give notice.

(b) Subject to this Section 6.6(b) and Section 6.6(c) , an Indemnifying Party may elect to control the defense of (and to seek to settle or compromise), at such Indemnifying Party’s own expense and by such Indemnifying Party’s own counsel, any Third-Party Claim. Within thirty (30) days after the receipt of notice from an Indemnified Party in accordance with

 

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Section 6.6(a) (or sooner, if the nature of such Third-Party Claim so requires), the Indemnifying Party shall notify the Indemnified Party of its election whether the Indemnifying Party will assume responsibility for defending such Third-Party Claim, which election shall specify any reservations or exceptions to its defense. After receiving notice from an Indemnifying Party to an Indemnified Party of its election to assume the defense of a Third-Party Claim, whether with or without any reservations or exceptions with respect to such defense, such Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, but the fees and expenses of such counsel shall be the expense of such Indemnified Party and, in any event, the Indemnified Party shall cooperate with the Indemnifying Party in such defense and make available to the Indemnifying Party, at the Indemnifying Party’s expense, all witnesses, information and materials in such Indemnified Party’s possession or under such Indemnified Party’s control relating thereto as are reasonably required by the Indemnifying Party. If an Indemnifying Party has elected to assume the defense of a Third-Party Claim, whether with or without any reservations or exceptions with respect to such defense, then such Indemnifying Party shall be solely liable for all fees and expenses incurred by it in connection with the defense of such Third-Party Claim and shall not be entitled to seek any indemnification or reimbursement from the Indemnified Party for any such fees or expenses incurred during the course of its defense of such Third-Party Claim, regardless of any subsequent decision by the Indemnifying Party to reject or otherwise abandon its assumption of such defense.

(c) Notwithstanding Section 6.6(b) , if any Indemnified Party shall in good faith determine that there would be an actual conflict of interest (whether legal, business or otherwise) if counsel for the Indemnifying Party represented both the Indemnified Party and Indemnifying Party, then the Indemnified Party shall have the right to employ separate counsel and to participate in (but not control) the defense, compromise, or settlement thereof, and the Indemnifying Party shall bear the reasonable fees and expenses of one (1) separate counsel for all Indemnified Parties.

(d) If an Indemnifying Party elects not to assume responsibility for defending a Third-Party Claim, or fails to notify an Indemnified Party of its election as provided in Section 6.6(b) , such Indemnified Party may defend such Third-Party Claim at the cost and expense of the Indemnifying Party. If the Indemnified Party is conducting the defense against any such Third-Party Claim, the Indemnifying Party shall cooperate with the Indemnified Party in such defense and make available to the Indemnified Party, at the Indemnifying Party’s expense, all witnesses, information and materials in such Indemnifying Party’s possession or under such Indemnifying Party’s control relating thereto as are reasonably required by the Indemnified Party.

(e) Without the prior written consent of any Indemnifying Party, which consent shall not be unreasonably withheld, conditioned or delayed, no Indemnified Party may settle or compromise, or seek to settle or compromise, any Third-Party Claim. Without the prior written consent of any Indemnified Party, which consent shall not be unreasonably withheld, conditioned or delayed, no Indemnifying Party shall consent to the entry of any judgment or enter into any settlement of any pending or threatened Third-Party Claim for which the Indemnified Party is seeking or may seek indemnity pursuant to this Section 6.6 unless such judgment or settlement is solely for monetary damages, does not impose any expense or obligation on the Indemnified Party, does not involve any finding or determination of

 

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wrongdoing or violation of Law by the Indemnified Party and provides for a full, unconditional and irrevocable release of that Indemnified Party from all liability in connection with the Third-Party Claim.

6.7 Tax Procedures .

(a) With respect to any period in which MGP has made or will make an election to be taxed as a real estate investment trust within the meaning of Section 856 of the Code (a “ REIT ”), notwithstanding any other provisions in this Agreement, any payments to be made by any member of the MGM Group to any member of the MGP Group pursuant to Sections 6.3 , 6.4 or 6.5 for any calendar year shall not exceed the sum of (i) the amount that it is determined will not be gross income of MGP for purposes of the requirements of Sections 856(c)(2) and (3) of the Code (the “ Specified REIT Requirements ”) or would constitute income described in Sections 856(c)(2)(A) through (I) and 856(c)(3)(A) through (I) of the Code (“ Qualifying Income ”), with such determination to be set forth in an opinion of outside Tax counsel selected by MGP, which opinion shall be reasonably satisfactory to MGP, plus (ii) such additional amount that is estimated can be paid to MGP in such Taxable year without causing MGP to fail to meet the Specified REIT Requirements, determined (x) as if the payment of such amount did not constitute Qualifying Income and (y) by taking into account any other payments to MGP during such Taxable year that do not constitute Qualifying Income, which determination shall be (A) made by independent Tax accountants to MGP, and (B) submitted to and approved by MGP’s outside Tax counsel, plus (iii) in the event that MGP receives a ruling from the IRS to the effect that MGP’s receipt of the additional amount otherwise to be paid under this Agreement either would constitute Qualifying Income or will not be gross income of MGP for purposes of the Specified REIT Requirements, the aggregate payments otherwise required to be made pursuant to Sections 6.3 , 6.4 or 6.5 (determined without regard to this Section 6.7(a) ) less the amount otherwise previously paid under clauses (i) and (ii) above.

(b) At the election of MGP, MGM shall cause the full amount of any payments otherwise to be made by any member of the MGM Group pursuant to Sections 6.3 , 6.4 or 6.5 either to be paid in cash as promptly as reasonably practicable by wire transfer of immediately available funds to an account designated by MGP or to be placed in a mutually agreed escrow account upon mutually acceptable terms (which shall provide that (i) the amount in the escrow account shall be treated as the property of the applicable member of the MGM Group, unless it is released from such escrow account to any MGP Indemnified Party, (ii) all income earned upon the amount in the escrow account shall be treated as the property of the applicable member of the MGM Group and reported, as and to the extent required by applicable Law, by the escrow agent to the IRS, or any other Taxing authority, on IRS Form 1099 or 1042S (or other appropriate form) as income earned by the applicable member of the MGM Group whether or not said income has been distributed during such Taxable year and (iii) any portion thereof shall not be released to any MGP Indemnified Party unless and until MGM receives any of the following: (A) a letter from MGP’s independent Tax accountants indicating the amount that it is estimated can be paid at that time to the MGP Indemnified Parties without causing MGP to fail to meet the Specified REIT Requirements for the Taxable year in which the payment would be made, which determination shall be made by such independent Tax accountants or (B) a ruling from the IRS or an opinion of outside Tax counsel selected by MGP such opinion to be reasonably satisfactory to MGP, in each case, to the effect that the receipt of the additional

 

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amount otherwise to be paid pursuant to Sections 6.3 , 6.4 or 6.5 either would be excluded from gross income of MGP for purposes of the Specified REIT Requirements or would constitute Qualifying Income, in either of which events MGM shall cause the applicable member of the MGM Group to pay to the applicable MGP Indemnified Parties the lesser of the unpaid amounts due pursuant to Sections 6.3 , 6.4 or 6.5 (determined without regard to this Section 6.7 ) or the maximum amount stated in the letter referred to in clause (iii)(A) above.

(c) Any amount held in escrow pursuant to Section 6.7(b) for five years shall be released from such escrow to be used as determined by the applicable member of the MGM Group in its sole and absolute discretion.

(d) MGP shall bear all costs and expenses with respect to the escrow.

(e) MGM shall cooperate in good faith to amend this Section 6.7 at the reasonable request of MGP in order to (i) maximize the portion of such payment that may be distributed to MGP hereunder without causing MGP to fail to meet the requirements of Sections 856(c)(2) and (3) of the Code, (ii) improve MGP’s chances of securing a favorable ruling described in this Section 6.7 , or (iii) assist MGP in obtaining a favorable opinion from its outside Tax counsel or determination from its Tax accountants as described in this Section 6.7 . MGP shall reimburse MGM for all reasonable costs and expenses of such cooperation.

6.8 Additional Matters .

(a) Indemnification or contribution payments in respect of any Liabilities for which an Indemnified Party is entitled to indemnification or contribution under this Article VI shall be paid by the Indemnifying Party to the Indemnified Party as such Liabilities are incurred upon demand by the Indemnified Party, including an obligation to provide reasonably satisfactory documentation setting forth the basis for the amount of such indemnification or contribution payment, including documentation with respect to calculations made and consideration of any Insurance Proceeds that actually reduce the amount of such Liabilities. The indemnity and contribution agreements contained in this Article VI shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Indemnified Party; (ii) the knowledge by the Indemnified Party of Liabilities for which it might be entitled to indemnification or contribution hereunder; and (iii) any termination of this Agreement.

(b) Any claim for indemnification under this Agreement which does not result from a Third-Party Claim shall be asserted by written notice given by the Indemnified Party to the applicable Indemnifying Party. Such Indemnifying Party shall have a period of 30 days after the receipt of such notice within which to respond thereto. If such Indemnifying Party does not respond within such 30-day period, such Indemnifying Party shall be deemed to have refused to accept responsibility to make payment. If such Indemnifying Party does not respond within such 30-day period or rejects such claim in whole or in part, such Indemnified Party shall be free to pursue such remedies as may be available to such party as contemplated by this Agreement and the Transaction Documents without prejudice to its continuing rights to pursue indemnification or contribution hereunder.

 

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(c) If payment is made by or on behalf of any Indemnifying Party to any Indemnified Party in connection with any Third-Party Claim, such Indemnifying Party shall be subrogated to and shall stand in the place of such Indemnified Party as to any events or circumstances in respect of which such Indemnified Party may have any right, defense or claim relating to such Third-Party Claim against any claimant or plaintiff asserting such Third-Party Claim or against any other Person. Such Indemnified Party shall cooperate with such Indemnifying Party in a reasonable manner, and at the cost and expense of such Indemnifying Party, in prosecuting any subrogated right, defense or claim.

(d) In an Action in which the Indemnifying Party is not a named defendant, if either the Indemnified Party or Indemnifying Party shall so request, the parties shall endeavor to substitute the Indemnifying Party for the named defendant if they conclude that substitution is desirable and practical. If such substitution or addition cannot be achieved for any reason or is not requested, the named defendant shall allow the Indemnifying Party to manage the Action as set forth in this Section 6.8(d), and the Indemnifying Party shall fully indemnify the named defendant against all costs of defending the Action (including court costs, sanctions imposed by a court, attorneys’ fees, experts fees and all other external expenses), the costs of any judgment or settlement, and the cost of any interest or penalties relating to any judgment or settlement.

(e) The Parties agree to treat (i) any payment required by this Agreement (other than payments with respect to interest accruing after the Effective Time) as either a contribution by or behalf of MGM to MGP or a distribution by or on behalf of MGP to MGM, as the case may be, occurring immediately prior to the Effective Time or as a payment of an assumed or retained Liability, and (ii) any payment of interest as Taxable or deductible, as the case may be, to the party entitled under this Agreement to retain such payment or required under this Agreement to make such payment, in either case except as otherwise required by applicable Law.

6.9 Remedies Cumulative; Limitations of Liability . The rights provided in this Article VI shall be cumulative and, subject to the provisions of Article VIII , shall not preclude assertion by any Indemnified Party of any other rights or the seeking of any and all other remedies against any Indemnifying Party. Notwithstanding the foregoing, neither MGP or its Affiliates, on the one hand, nor MGM or its Affiliates, on the other hand, shall be liable to the other for any special, indirect, punitive, exemplary, remote, speculative or similar damages in excess of compensatory damages (collectively, “ Special Damages ”) of the other arising in connection with the transactions ( provided , that any such liability with respect to a Third Party Claim shall be considered direct damages).

6.10 Survival of Indemnities . The rights and obligations of each of MGM, MGP and their respective Indemnified Parties under this Article VI shall survive the sale or other transfer by any party of any Assets or businesses or the assignment by it of any Liabilities.

ARTICLE VII

OTHER AGREEMENTS

7.1 Further Assurances .

 

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(a) In addition to the actions specifically provided for elsewhere in this Agreement, each of MGM, MGP and the OP will cooperate with each other and use (and will cause their respective Subsidiaries and Affiliates to use) commercially reasonable efforts, prior to, on and after the Closing Date, to take, or to cause to be taken, all actions, and to do, or to cause to be done, all things reasonably necessary on its part under applicable Law or contractual obligations to consummate and make effective the Transactions.

(b) On or prior to the Effective Time, MGM and MGP in their respective capacities as direct and indirect holders of Stock of their respective Subsidiaries, shall each ratify any actions that are reasonably necessary or desirable to be taken by MGM and MGP or any other Subsidiary of MGM or MGP, as the case may be, to effectuate the transactions contemplated by this Agreement.

7.2 Confidentiality .

(a) From and after the Effective Time, subject to Section 7.2(c) and except as contemplated by this Agreement or any Transaction Document, MGM shall not, and shall cause its Affiliates and their respective officers, directors, employees, and other agents and representatives, including attorneys, agents, customers, suppliers, contractors, consultants and other representatives of any Person providing financing (collectively, “ Representatives ”), not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than Representatives of such Party or of its Affiliates who reasonably need to know such information in providing services to any member of the MGM Group, any MGP Confidential Information. If any uses or disclosures are made in connection with providing services to any member of the MGM Group under this Agreement or any Transaction Document, then the MGP Confidential Information so used or disclosed shall be used only as required to perform such services. The MGM Group shall use the same degree of care to prevent and restrain the unauthorized use or disclosure of the MGP Confidential Information by any of their Representatives as they currently use for their own confidential information of a like nature, but in no event less than a reasonable standard of care. For purposes of this Section 7.2 , any Information, material or documents relating to the MGP Business currently or formerly conducted, or proposed to be conducted, by any member of the MGP Group furnished to or in possession of any member of the MGM Group, irrespective of the form of communication, and all notes, analyses, compilations, forecasts, data, translations, studies, memoranda or other documents prepared by any member of the MGM Group or their respective officers, directors and Affiliates, that contain or otherwise reflect such information, material or documents is hereinafter referred to as “ MGP Confidential Information .” “ MGP Confidential Information ” does not include, and there shall be no obligation hereunder with respect to, Information that (i) is or becomes generally available to the public, other than as a result of a use or disclosure by any member of the MGM Group not otherwise permissible hereunder, (ii) MGM can demonstrate was or became available to such Party or such member of the MGM Group from a source other than MGP or its Affiliates or (iii) is developed independently by such member of the MGM Group without reference to the MGP Confidential Information; provided , however , that, in the case of clause (ii), the source of such Information was not known by such member of the MGM Group to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, MGP or any member of the MGP Group with respect to such information.

 

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(b) From and after the Effective Time, subject to Section 7.2(c) and except as contemplated by this Agreement or any Transaction Document, MGP shall not, and shall cause its Affiliates and their respective Representatives not to, directly or indirectly, disclose, reveal, divulge or communicate to any Person other than Representatives of such Party or of its Affiliates who reasonably need to know such Information in providing services to MGP or any member of the MGP Group or use or otherwise exploit for its own benefit or for the benefit of any third party, any MGM Confidential Information. If any uses or disclosures are made in connection with providing services to any member of the MGP Group under this Agreement or any Transaction Document, then the MGM Confidential Information so used or disclosed shall be used only as required to perform the services. The MGP Group shall use the same degree of care to prevent and restrain the unauthorized use or disclosure of the MGM Confidential Information by any of their Representatives as they currently use for their own confidential information of a like nature, but in no event less than a reasonable standard of care. For purposes of this Section 7.2 , any Information, material or documents relating to the businesses currently or formerly conducted, or proposed to be conducted, by MGM or any of its Affiliates (other than any member of the MGP Group) furnished to or in possession of any member of the MGP Group, irrespective of the form of communication, and all notes, analyses, compilations, forecasts, data, translations, studies, memoranda or other documents prepared by MGP, any member of the MGP Group or their respective officers, directors and Affiliates, that contain or otherwise reflect such information, material or documents is hereinafter referred to as “ MGM Confidential Information .” “ MGM Confidential Information ” does not include, and there shall be no obligation hereunder with respect to, Information that (i) is or becomes generally available to the public, other than as a result of a use or disclosure by any member of the MGP Group not otherwise permissible hereunder, (ii) MGP can demonstrate was or became available to MGP from a source other than MGM or any of its Affiliates or (iii) is developed independently by such member of the MGP Group without reference to the MGM Confidential Information; provided , however , that, in the case of clause (ii), the source of such Information was not known by such member of the MGP Group to be bound by a confidentiality agreement with, or other contractual, legal or fiduciary obligation of confidentiality to, any such member of the MGM Group or their respective Affiliates with respect to such Information.

(c) If MGM or their Affiliates, on the one hand, or MGP or its Affiliates, on the other hand, are requested or required (by oral question, interrogatories, requests for Information or documents, subpoena, civil investigative demand or similar process) by any Governmental Authority or pursuant to applicable Law to disclose or provide any MGP Confidential Information or MGM Confidential Information (other than with respect to any such information furnished pursuant to the provisions of Article V ), as applicable, the entity or Person receiving such request or demand shall use commercially reasonable efforts to provide the other Party with written notice of such request or demand as promptly as practicable under the circumstances so that such other Party shall have an opportunity to seek an appropriate protective order. The Party receiving such request or demand agrees to take, and cause its representatives to take, at the requesting Party’s expense, all other reasonable steps necessary to obtain confidential treatment by the recipient. Subject to the foregoing, the Party that received such request or demand may thereafter disclose or provide any MGP Confidential Information or MGM Confidential Information, as the case may be, to the extent required by such Law (as so advised by counsel) or by lawful process or such Governmental Authority.

 

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(d) Each of MGM and MGP acknowledges that it and the other members of its Group may have in their possession confidential or proprietary Information of third Persons that was received under confidentiality or non-disclosure agreements with such third Person prior to the Closing Date. Each of MGM and MGP agrees that it will hold, and will cause the other members of its Group and their respective Representatives to hold, in strict confidence the confidential and proprietary Information of third Persons to which it or any other member of its respective Group has access, in accordance with the terms of any agreements entered into prior to the Closing Date between or among one (1) or more members of the applicable Party’s Group and such third Persons to the extent disclosed to such Party.

7.3 Litigation; Cooperation .

(a) MGM agrees that, at all times from and after the Effective Time, if a Third-Party Claim relating primarily to the MGM Business is commenced naming both MGM (or any member of the MGM Group) and MGP (or any member of the MGP Group) as defendants thereto, then MGM shall use commercially reasonable efforts to cause MGP (and any member of the MGP Group) to be removed from such Third-Party Claim; provided , that if MGM is unable to cause MGP (and any member of the MGP Group) to be removed from such Third-Party Claim, MGM and MGP shall cooperate and consult to the extent necessary or advisable with respect to such Third-Party Claim.

(b) MGP agrees that, at all times from and after the Effective Time, if a Third-Party Claim constituting MGP Liabilities is commenced naming both of MGM (and any member of the MGM Group) and MGP as defendants thereto, then MGP shall use its commercially reasonable efforts to cause MGM (and any member of the MGM Group) to be removed from such Third-Party Claim; provided , that if MGP is unable to cause MGM to be removed from such Third-Party Claim, MGM and MGP shall cooperate and consult to the extent necessary or advisable with respect to such Third-Party Claim.

(c) MGM and MGP agree that, at all times from and after the Effective Time, if a Third-Party Claim which does not constitute MGP Liabilities or relate primarily to the MGM Business is commenced naming both MGM (or any member of the MGM Group) and MGP (or any member of the MGP Group) as defendants thereto, then MGM and MGP shall cooperate fully with each other, maintain a joint defense (in a manner that would preserve for both parties and their respective Affiliates any attorney-client privilege, joint defense or other privilege with respect thereto) and consult each other to the extent necessary or advisable with respect to such Third-Party Claim.

7.4 Allocation of Costs and Expenses . The OP shall pay, or as promptly as practicable following the consummation of the Initial Public Offering cause MGM to be reimbursed for, all costs and expenses that qualify for accounting purposes, and are directly associated with, the issuance of equity interests in MGP as contemplated in the Initial Public Offering, including, without limitation, underwriting fees, discounts and commissions and other costs and expenses associated with the preparation and review of the IPO Registration Statement, all costs and expenses associated with the OP’s debt related documents, all costs and expenses associated with MGP’s internal management and all costs and expenses associated with correspondence with the SEC in connection with the Initial Public Offering (including any pre-

 

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clearance letters) and the preparation and review of pro forma financial statements of MGP in connection with the Initial Public Offering. Except as otherwise provided in this Agreement, the Transaction Documents, any other agreement between the Parties relating to the Contribution, the Initial Public Offering or as otherwise agreed between the Parties, all other out-of-pocket costs and expenses of the Parties in connection with the preparation of this Agreement and the Transaction Documents, including, without limitation, advisory fees, costs and expenses associated with the preparation and review of the Master Lease Agreement (including any appraisals of real property contemplated in connection therewith), and costs and expenses associated with the preparation and audit of financial statements (other than pro forma financial statements of MGP in connection with the Initial Public Offering), shall be paid by MGM.

ARTICLE VIII

DISPUTE RESOLUTION

8.1 General Provisions .

(a) Any dispute, controversy or claim arising out of or relating to this Agreement or the Transaction Documents (other than the Master Lease Agreement) unless expressly set forth therein, or the validity, interpretation, breach or termination thereof (a “ Dispute ”), shall be resolved in accordance with the procedures set forth in this Article VIII , which shall be the sole and exclusive procedures for the resolution of any such Dispute unless otherwise specified below.

(b) All communications between the Parties or their representatives in connection with the attempted resolution of any Dispute, including any mediator’s evaluation referred to in Section 8.3 set forth below, shall be deemed to have been delivered in furtherance of a Dispute settlement and shall be exempt from discovery and production, and shall not be admissible as evidence for any reason (whether as an admission or otherwise), in any arbitral or other proceeding for the resolution of the Dispute.

(a) THE PARTIES EXPRESSLY WAIVE AND FOREGO ANY RIGHT TO (I) SPECIAL DAMAGES, AS DEFINED HEREIN ( PROVIDED , THAT LIABILITY FOR ANY SUCH SPECIAL DAMAGES, AS DEFINED HEREIN, WITH RESPECT TO ANY THIRD PARTY CLAIM SHALL BE CONSIDERED DIRECT DAMAGES) AND (II) TRIAL BY JURY.

(c) The specific procedures set forth below, including but not limited to the time limits referenced therein, may be modified by agreement of the Parties in writing.

(d) All applicable statutes of limitations and defenses based upon the passage of time shall be tolled while the procedures specified in this Article VIII are pending. The Parties will take any necessary or appropriate action to effectuate such tolling.

(e) Notwithstanding anything to the contrary contained in this Article VIII , any Dispute relating to a member of the MGM Group’s rights as a holder of limited liability company interests in MGP or limited partnership interests in the OP (in each case, a “ Holder ”) pursuant to applicable Law, the Amended and Restated LLC Agreement or the Amended and

 

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Restated Limited Partnership Agreement, including a member of the MGM Group’s rights as a Holder, will not be governed by or subject to the procedures set forth in this Article VIII . The Parties hereto hereby irrevocably submit to the exclusive jurisdiction of the courts of the state of New York or, if such court lacks subject matter jurisdiction, any other state court or federal court having subject matter jurisdiction located within the State of New York in connection with any such Dispute, and each Party hereby irrevocably agrees that all claims in respect of any such Dispute or any suit, action or proceeding related thereto may be heard and determined in such courts. The Parties hereby irrevocably waive, to the fullest extent permitted by applicable Law, any objection that they may now or hereafter have to the laying of venue of any such Dispute brought in such courts or any defense of inconvenient forum for the maintenance of such Dispute. Each of the Parties hereto agrees that a judgment in any such Dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

8.2 Mediation . Any Party may initiate negotiations with any other Party with respect to a Dispute by delivering written notice to such other Party, which shall include a statement setting forth the nature of such Dispute and each Party’s position. If such Dispute is not resolved by good faith negotiation by the Parties within forty-five (45) days from the receipt of such written notice, then either Party may submit the Dispute for resolution by mediation pursuant to the CPR Institute for Dispute Resolution (the “ CPR ”) Model Mediation Procedure as then in effect. The Parties will select a mediator from the CPR Panels of Distinguished Neutrals. If the Parties are unable to select a mutually agreeable mediator within twenty (20) days following the submission of the Dispute to the CPR, the CPR shall select the mediator from the CPR Panels of Distinguished Neutrals. Either Party at commencement of the mediation may ask the mediator to provide an evaluation of the Dispute and the Parties’ relative positions.

8.3 Arbitration .

(a) If a Dispute is not resolved by mediation as provided in Section 8.2 within thirty (30) days of the selection of a mediator (unless the mediator chooses to withdraw sooner), either Party may submit the Dispute to be finally resolved by arbitration pursuant to the CPR Rules for Non-Administered Arbitration as then in effect (the “ CPR Arbitration Rules ”). The Parties consent to a single, consolidated arbitration for all known Disputes existing at the time of the arbitration and for which arbitration is permitted.

(b) The neutral organization for purposes of the CPR Arbitration Rules will be the CPR. The arbitral tribunal shall be composed of three arbitrators, of whom each Party shall appoint one in accordance with the “screened” appointment procedure provided in Rule 5.4 of the CPR Arbitration Rules. The arbitration shall be conducted in the State of New York. Each Party shall be permitted to present its case, witnesses and evidence, if any, in the presence of the other Party. A written transcript of the proceedings shall be made and furnished to the Parties. The arbitrators shall determine the Dispute in accordance with the law of the State of New York, without giving effect to any conflict of law rules or other rules that might render such law inapplicable or unavailable, and shall apply this Agreement and the Transaction Documents according to their respective terms; provided , however , that any Dispute in respect of a Transaction Document which by its terms is governed by the law of a jurisdiction other than the State of New York shall be determined by the law of such other jurisdiction; provided , further , however , that the provisions of this Agreement relating to arbitration shall, except as otherwise

 

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provided in this Article VIII or otherwise agreed to by the Parties in writing, be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.

(c) The Parties agree to be bound by any award or order resulting from any arbitration conducted in accordance with this Section 8.3 and further agree that judgment on any award or order resulting from an arbitration conducted under this Section 8.3 may be entered and enforced in any court having jurisdiction thereof.

(d) Except as expressly permitted by this Agreement, no Party will commence or voluntarily participate in any court action or proceeding concerning a Dispute, except (i) for enforcement as contemplated by Section 8.3(c) above, (ii) to restrict or vacate an arbitral decision based on the grounds specified under applicable Law, or (iii) for interim relief as provided in paragraph (e) below. For purposes of the foregoing, the Parties hereto submit to the non-exclusive jurisdiction of the courts of the State of New York.

(e) In addition to the authority otherwise conferred on the arbitral tribunal, the tribunal shall have the authority to make such orders for interim relief, including injunctive relief, as it may deem just and equitable. Notwithstanding Section 8.3(d) above, each Party acknowledges that in the event of any actual or threatened breach of the provisions of the Corporate Services Agreement, the Registration Rights Agreement, the Intellectual Property License Agreement and this Agreement, the remedy at law would not be adequate, and therefore injunctive or other interim relief may be sought immediately to restrain such breach. If the tribunal shall not have been appointed, either Party may seek interim relief from a court having jurisdiction if the award to which the applicant may be entitled may be rendered ineffectual without such interim relief. Upon appointment of the tribunal following any grant of interim relief by a court, the tribunal may affirm or disaffirm such relief, and the Parties will seek modification or rescission of the court action as necessary to accord with the tribunal’s decision.

(f) A Party obtaining an order of interim injunctive relief may enter judgment upon such award in any court of competent jurisdiction. The final award in an arbitration pursuant to this Article VIII shall be conclusive and binding upon the Parties, and a Party obtaining a final award may enter judgment upon such award in any court of competent jurisdiction.

(g) It is the intent of the Parties that the agreement to arbitrate Disputes set forth in this Section 8.3 shall be interpreted and applied broadly such that all reasonable doubts as to arbitrability of a Dispute shall be decided in favor of arbitration.

(h) So long as any Party has a timely claim to assert, the agreement to arbitrate Disputes set forth in this Section 8.3 will continue in full force and effect subsequent to, and notwithstanding the completion, expiration or termination of, this Agreement.

(i) If a Dispute includes both arbitrable and nonarbitrable claims, counterclaims or defenses, the Parties shall arbitrate all such arbitrable claims, counterclaims or defenses and shall concurrently litigate, subject to and in accordance with Section 9.2 , all such nonarbitrable claims, counterclaims or defenses.

 

31

(j) Each Party shall bear its own fees, costs and expenses and shall bear an equal share of the expenses of the arbitration, including the fees, costs and expenses of the arbitrator; provided , that in the case of any Disputes relating to the Parties’ rights and obligations with respect to indemnification under Article VI , the substantially prevailing Party shall be entitled to reimbursement by the other Party of its reasonable out-of-pocket fees and expenses (including attorneys’ fees) incurred in connection with the arbitration.

ARTICLE IX

MISCELLANEOUS

9.1 Power . MGM represents on behalf of itself and on behalf of the other members of the MGM Group, and MGP represents on behalf of itself and on behalf of the other members of the MGP Group (including the OP), that (a) each such Person has the requisite corporate or other power and authority and has taken all corporate or other action necessary in order to execute, deliver and perform this Agreement and each Transaction Document to which it is a party and to consummate the transactions contemplated hereby and thereby; and (b) this Agreement and each Transaction Document to which it is a party has been duly executed and delivered by it and constitutes a valid and binding agreement of it enforceable in accordance with the terms thereof.

9.2 Governing Law; Jurisdiction . This Agreement and, unless expressly provided therein, each Transaction Document, shall be governed by and construed and interpreted in accordance with the Laws of the State of New York irrespective of the choice of Laws principles thereof. In addition, with respect to this Agreement (other than Disputes governed by the mediation and/or arbitration procedures set forth in Article VIII ) and, unless expressly provided therein, each Transaction Document, the Parties agree that any legal action or proceeding shall be brought and determined exclusively in a state or federal court located within the State of New York.

9.3 Survival of Covenants . Except as expressly set forth in any Transaction Document, the covenants and other agreements contained in this Agreement and each Transaction Document, and any liability for the breach of any obligations contained herein or therein, shall survive each of the Contribution and the Initial Public Offering and shall remain in full force and effect.

9.4 Force Majeure . No Party (or any Person acting on its behalf) shall have any liability or responsibility for failure to fulfill any obligation (other than a payment obligation) under this Agreement or, unless otherwise expressly provided therein, any Transaction Document, so long as and to the extent to which the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a consequence of circumstances of Force Majeure. A Party claiming the benefit of this provision shall, as soon as reasonably practicable after the occurrence of any such event: (a) notify the other Parties of the nature and extent of any such Force Majeure condition and (b) use due diligence to remove any such causes and resume performance under this Agreement as soon as feasible.

9.5 Notices . All notices, requests, claims, demands and other communications under this Agreement and, to the extent applicable and unless otherwise provided therein, under each of

 

32

the Transaction Documents shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or email with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 9.5 ):

If to MGM, to:

MGM Resorts International

3600 Las Vegas Blvd. So.,

Las Vegas, Nevada 89109

Attention: Corporate Legal

Facsimile: (702) 693-8123

If to MGP, to:

MGM Growth Properties LLC

3950 Las Vegas Blvd. So.,

Las Vegas, Nevada 89119

Attention: Corporate Legal

Facsimile: (702) 693-8123

If to the OP, to:

MGM Growth Properties Operating Partnership LP

3950 Las Vegas Blvd. So.,

Las Vegas, Nevada 89119

Attention: Corporate Legal

Facsimile: (702) 693-8123

9.6 Termination . Notwithstanding any provision to the contrary, this Agreement may be terminated and the Initial Public Offering abandoned at any time prior to the Effective Time by and in the sole discretion of MGM without the prior approval of any Person, including MGP. In the event of such termination, this Agreement shall become void and no Party or any of its officers and directors shall have any liability to any Person by reason of this Agreement. After the Effective Time, this Agreement may not be terminated except by an agreement in writing signed by each of the Parties to this Agreement.

9.7 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any Law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties to this Agreement shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in a mutually acceptable manner in

 

33

order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.

9.8 Entire Agreement . Except as otherwise expressly provided in this Agreement, this Agreement (including the Schedules and Exhibits hereto) constitutes the entire agreement of the Parties hereto with respect to the subject matter of this Agreement and supersedes all prior agreements and undertakings, both written and oral, between or on behalf of the Parties hereto with respect to the subject matter of this Agreement.

9.9 Assignment; No Third-Party Beneficiaries . This Agreement shall not be assigned by any Party without the prior written consent of the other Parties hereto. Except as provided in Article VI with respect to Indemnified Parties, this Agreement is for the sole benefit of the Parties to this Agreement and the members of their respective Group and their permitted successors and assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

9.10 Public Announcements . MGM and MGP shall consult with each other before issuing, and give each other the opportunity to review and comment upon, any press release or other public statements with respect to the transactions contemplated by this Agreement and the Transaction Documents, and shall not issue any such press release or make any such public statement prior to such consultation, except as may be required by applicable Law, court process or by obligations pursuant to any listing agreement with any national securities exchange or national securities quotation system.

9.11 Specific Performance . Subject to the provisions of Article VIII , in the event of any actual or threatened default in, or breach of, any of the terms, conditions and provisions of this Agreement or any Transaction Document, the Party or Parties who are or are to be thereby aggrieved shall have the right to specific performance and injunctive or other equitable relief (on an interim or permanent basis) of its rights under this Agreement or such Transaction Document, in addition to any and all other rights and remedies at Law or in equity, and all such rights and remedies shall be cumulative. The Parties agree that the remedies at Law for any breach or threatened breach, including monetary damages, would not be adequate compensation for any loss and that any defense in any Action for specific performance that a remedy at Law would be adequate is waived. Any requirements for the securing or posting of any bond with such remedy are waived by each of the Parties to this Agreement.

9.12 Amendment . No provision of this Agreement may be amended or modified except by a written instrument signed by all of the Parties. Any Party may, in its sole discretion, waive any and all rights granted to it in this Agreement; provided , that no waiver by any Party of any provision hereof shall be effective unless explicitly set forth in writing and executed by the Party so waiving. The waiver by any Party of a breach of any provision of this Agreement shall not operate or be construed as a waiver of any other subsequent breach.

9.13 Rules of Construction . Interpretation of this Agreement shall be governed by the following rules of construction: (a) words in the singular shall be held to include the plural and vice versa and words of one gender shall be held to include the other gender as the context

 

34

requires, (b) references to the terms Article, Section, paragraph, and Schedule are references to the Articles, Sections, paragraphs, and Schedules to this Agreement unless otherwise specified, (c) the word “including” and words of similar import shall mean “including, without limitation,” (d) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement, including the Schedules and Exhibits hereto, (e) provisions shall apply, when appropriate, to successive events and transactions, (f) the table of contents and headings contained herein are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement and (e) this Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the Party drafting or causing any instrument to be drafted.

9.14 Counterparts . This Agreement may be executed in one or more counterparts, and by the different Parties to each such agreement in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile or portable document format (PDF) shall be as effective as delivery of a manually executed counterpart of any such Agreement.

[The remainder of this page is intentionally left blank]

 

35

IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed on the date first written above by their respective duly authorized officers.

 

MGM RESORTS INTERNATIONAL
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Executive Vice President, General Counsel and Secretary
MGM GROWTH PROPERTIES LLC
By:  

/s/ Andy H. Chien

Name:   Andy H. Chien
Title:   Chief Financial Officer
MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP
By: MGM Growth Properties OP GP LLC,
Its: General Partner
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary

[SIGNATURE PAGE TO MASTER CONTRIBUTION AGREEMENT]

Exhibit 4.3

SUPPLEMENTAL INDENTURE

S UPPLEMENTAL I NDENTURE (this “ Supplemental Indenture ”), dated as of April 25, 2016 among MGM Growth Properties Operating Partnership LP (the “ Company ”), MGP Escrow Co-Issuer, Inc., a Delaware corporation (the “ Co-Issuer ”), MGP Lessor Holdings, LLC, a Delaware limited liability company, MGP Lessor, LLC, a Delaware limited liability company (together, with MGP Lessor Holdings, LLC, the “ Guaranteeing Entities ”) and U.S. Bank National Association, as Trustee under the Indenture referred to below (the “ Trustee ”).

W I T N E S S E T H

WHEREAS, the Issuers have heretofore executed and delivered to the Trustee an indenture (the “ Indenture ”), dated as of April 20, 2016 providing for the issuance of 5.625% Senior Notes due 2024 (the “ Notes ”);

WHEREAS, the Indenture provides that under certain circumstances the Guaranteeing Entities shall execute and deliver to the Trustee a supplemental indenture pursuant to which the Guaranteeing Entities shall unconditionally guarantee all of the Issuers’ obligations under the Notes and the Indenture on the terms and conditions set forth herein (the “ Note Guarantee ”); and

WHEREAS, pursuant to Section 9.01 of the Indenture, the Trustee is authorized to execute and deliver this Supplemental Indenture.

NOW, THEREFORE, in consideration of the foregoing and for other good and valuable consideration, the receipt of which is hereby acknowledged, the Company, Guaranteeing Entities and the Trustee mutually covenant and agree for the equal and ratable benefit of the Holders of the Notes as follows:

1. C APITALIZED T ERMS . Capitalized terms used herein without definition shall have the meanings assigned to them in the Indenture.

2. J OINDER OF THE C OMPANY . The Company hereby agrees that it is bound by the terms, conditions and other provisions of the Indenture with all attendant rights, duties and obligations stated therein in its capacity as “Principal Issuer” as defined therein and as if the Company had executed the Indenture on the date thereof.

3. A GREEMENT TO G UARANTEE . Each of the Guaranteeing Entities hereby agrees to provide an unconditional Guarantee on the terms and subject to the conditions set forth in the Note Guarantee and in the Indenture including but not limited to Article 10 thereof.

4. N O R ECOURSE A GAINST O THERS . No director, officer, employee, incorporator or stockholder of the Issuers or any Subsidiary Guarantor, as such, will have any liability for any obligations of the Company or the Subsidiary Guarantors under the Notes, the Indenture, the Note Guarantees or for any claim based on, in respect of, or by reason of, such obligations or their creation. Each Holder of Notes by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for issuance of the Notes. The waiver may not be effective to waive liabilities under the federal securities laws.

5. NEW YORK LAW TO GOVERN. THE INTERNAL LAW OF THE STATE OF NEW YORK SHALL GOVERN AND BE USED TO CONSTRUE THIS SUPPLEMENTAL INDENTURE

 

1

WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW TO THE EXTENT THAT THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED THEREBY.

6. C OUNTERPARTS . The parties may sign any number of copies of this Supplemental Indenture. Each signed copy shall be an original, but all of them together represent the same agreement.

7. E FFECT OF H EADINGS . The Section headings herein are for convenience only and shall not affect the construction hereof.

8. T HE T RUSTEE . The Trustee shall not be responsible in any manner whatsoever for or in respect of the validity or sufficiency of this Supplemental Indenture or for or in respect of the recitals contained herein, all of which recitals are made solely by the Guaranteeing Entities and the Company.

 

2

IN WITNESS WHEREOF, the parties hereto have caused this Supplemental Indenture to be duly executed and attested, all as of the date first above written.

Dated: April 25, 2016

 

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP
By:   MGM Growth Properties OP GP LLC, as the sole general partner
By:   /s/ John M. McManus
  Name: John M. McManus
  Title: Secretary

 

MGP ESCROW CO-ISSUER, INC.
By:   /s/ John M. McManus
  Name: John M. McManus
  Title: Secretary

 

MGP LESSOR HOLDINGS, LLC
By:   /s/ John M. McManus
  Name: John M. McManus
  Title: Secretary

 

MGP LESSOR, LLC
By:   /s/ John M. McManus
  Name: John M. McManus
  Title: Secretary

 

U.S. BANK NATIONAL ASSOCIATION

as Trustee

By:   /s/ Raymond S. Haverstock
  Name: Raymond S. Haverstock
  Title: Vice President

 

3

Exhibit 10.1

 

MASTER LEASE

 

 

 

 

TABLE OF CONTENTS

TO

MASTER LEASE

 

            Page  
ARTICLE I     

LEASED PROPERTY

     1   
    1.1     

Leased Property

     1   
    1.2     

Single, Indivisible Lease

     2   
    1.3     

Term

     3   
    1.4     

Renewal Terms

     3   
    1.5     

Separation of Leases

     4   
ARTICLE II     

DEFINITIONS

     6   
    2.1     

Definitions

     6   
ARTICLE III     

RENT

     31   
    3.1     

Rent

     31   
    3.2     

Late Payment of Rent

     31   
    3.3     

Method of Payment of Rent

     31   
    3.4     

Net Lease

     32   
    3.5     

Fair Market Rent

     32   
ARTICLE IV     

IMPOSITIONS

     33   
    4.1     

Impositions

     33   
    4.2     

Utilities and other Matters

     34   
    4.3     

Impound Account

     34   
ARTICLE V     

NO ABATEMENT

     35   
    5.1     

No Termination, Abatement, etc.

     35   
ARTICLE VI     

OWNERSHIP OF LEASED PROPERTY

     36   
    6.1     

Ownership of the Leased Property

     36   
    6.2     

Tenant’s Property

     37   
    6.3     

Tenant’s Intellectual Property

     37   
ARTICLE VII     

CONDITION AND USE OF LEASED PROPERTY

     38   
    7.1     

Condition of the Leased Property

     38   
    7.2     

Use of the Leased Property

     38   
    7.3     

Development Facilities

     39   
    7.4     

Landlord ROFO

     39   
ARTICLE VIII     

COMPLIANCE WITH LAW; GROUND LEASES

     40   
    8.1     

Representations and Warranties

     40   
    8.2     

Compliance with Legal and Insurance Requirements, etc.

     41   
    8.3     

Zoning and Uses

     42   
    8.4     

Compliance with Ground Leases

     42   
ARTICLE IX     

MAINTENANCE AND REPAIR

     43   
    9.1     

Maintenance and Repair

     43   

 

i

TABLE OF CONTENTS

TO

MASTER LEASE

(Continued)

 

            Page  
    9.2     

Encroachments, Restrictions, Mineral Leases, etc.

     45   
ARTICLE X     

CAPITAL IMPROVEMENTS

     46   
    10.1     

Construction of Capital Improvements to the Leased Property

     46   
    10.2     

Construction Requirements for Capital Improvements

     47   
    10.3     

Tenant Capital Improvements Upon Deconsolidation

     47   
    10.4     

Ownership of Tenant Capital Improvements at end of Term

     49   
    10.5     

Funding of Tenant Capital Improvements

     49   
ARTICLE XI     

NO LIENS

     49   
    11.1     

Liens

     49   
ARTICLE XII     

PERMITTED CONTESTS

     51   
    12.1     

Permitted Contests

     51   
ARTICLE XIII     

INSURANCE

     52   
    13.1     

General Insurance Requirements

     52   
    13.2     

Additional Insurance

     54   
    13.3     

Waiver of Subrogation

     54   
    13.4     

Policy Requirements

     55   
    13.5     

Increase in Limits

     56   
    13.6     

Blanket Policy

     56   
    13.7     

No Separate Insurance

     56   
ARTICLE XIV     

CASUALTY

     57   
    14.1     

Property Insurance Proceeds

     57   
    14.2     

Tenant’s Obligations Following Casualty

     57   
    14.3     

No Abatement of Rent

     60   
    14.4     

Waiver

     60   
    14.5     

Insurance Proceeds Paid to Facility Mortgagee

     60   
    14.6     

Termination of Master Lease; Abatement of Rent

     60   
    14.7     

Multiple Facility Mortgagees

     61   
ARTICLE XV     

CONDEMNATION

     61   
    15.1     

Condemnation

     61   
    15.2     

Award Distribution

     62   
    15.3     

Temporary Taking

     62   
    15.4     

No Abatement of Rent

     62   
    15.5     

Waiver

     63   
    15.6     

Award Paid to Facility Mortgagee

     63   
    15.7     

Termination of Master Lease; Abatement of Rent

     63   
ARTICLE XVI     

DEFAULT; REMEDIES

     63   
    16.1     

Events of Default

     63   

 

ii        

TABLE OF CONTENTS

TO

MASTER LEASE

(Continued)

 

            Page  
    16.2     

Certain Remedies

     66   
    16.3     

Damages

     66   
    16.4     

Receiver

     68   
    16.5     

Waiver

     68   
    16.6     

Application of Funds

     68   
ARTICLE XVII     

TENANT’S FINANCING

     68   
    17.1     

Permitted Leasehold Mortgagees

     68   
    17.2     

Landlord’s Right to Cure Tenant’s Default

     76   
    17.3     

Tenant’s Debt Agreements

     76   
    17.4     

Landlord Cooperation

     76   
ARTICLE XVIII     

SALE OF LEASED PROPERTY

     76   
    18.1     

Sale of the Leased Property

     76   
ARTICLE XIX     

HOLDING OVER

     77   
    19.1     

Holding Over

     77   
ARTICLE XX     

RISK OF LOSS

     77   
    20.1     

Risk of Loss

     77   
ARTICLE XXI     

INDEMNIFICATION

     77   
    21.1     

General Indemnification

     77   
ARTICLE XXII     

SUBLETTING AND ASSIGNMENT

     78   
    22.1     

Subletting and Assignment

     78   
    22.2     

Permitted Assignments

     78   
    22.3     

Permitted Sublease Agreements

     80   
    22.4     

Required Assignment and Subletting Provisions

     81   
    22.5     

Costs

     82   
    22.6     

No Release of Tenant’s Obligations; Exception

     82   
    22.7     

Separate Lease; Rent Allocated

     82   
    22.8     

Management Agreements

     83   
ARTICLE XXIII     

REPORTING; CONFIDENTIALITY

     83   
    23.1     

Officer’s Certificates and Financial Statements

     83   
    23.2     

Confidentiality; Public Offering Information

     86   
    23.3     

Financial Covenants

     87   
    23.4     

Landlord Obligations

     87   
ARTICLE XXIV     

LANDLORD’S RIGHT TO INSPECT

     88   
    24.1     

Landlord’s Right to Inspect

     88   

 

iii        

TABLE OF CONTENTS

TO

MASTER LEASE

(Continued)

 

            Page  
ARTICLE XXV     

NO WAIVER

     88   
    25.1     

No Waiver

     88   
ARTICLE XXVI     

REMEDIES CUMULATIVE

     89   
    26.1     

Remedies Cumulative

     89   
ARTICLE XXVII     

ACCEPTANCE OF SURRENDER

     89   
    27.1     

Acceptance of Surrender

     89   
ARTICLE XXVIII     

NO MERGER

     89   
    28.1     

No Merger

     89   
ARTICLE XXIX     

CONVEYANCE BY LANDLORD

     89   
    29.1     

Conveyance by Landlord

     89   
ARTICLE XXX     

QUIET ENJOYMENT

     90   
    30.1     

Quiet Enjoyment

     90   
ARTICLE XXXI     

LANDLORD’S FINANCING

     90   
    31.1     

Landlord’s Financing

     90   
    31.2     

Attornment

     91   
ARTICLE XXXII     

HAZARDOUS SUBSTANCES

     92   
    32.1     

Hazardous Substances

     92   
    32.2     

Notices

     92   
    32.3     

Remediation

     92   
    32.4     

Indemnity

     92   
    32.5     

Environmental Inspections

     93   
ARTICLE XXXIII     

MEMORANDUM OF LEASE

     94   
    33.1     

Memorandum of Lease

     94   
ARTICLE XXXIV     

APPOINTING EXPERTS

     94   
    34.1     

Expert Dispute Resolution Process

     94   
ARTICLE XXXV     

NOTICES

     98   
    35.1     

Notices

     98   
ARTICLE XXXVI     

TRANSITION UPON EXPIRATION OR TERMINATION

     99   
    36.1     

Transfer of Tenant’s Assets at the Facilities

     99   
ARTICLE XXXVII     

ATTORNEY’S FEES

     99   
    37.1     

Attorneys’ Fees

     99   

 

iv        

TABLE OF CONTENTS

TO

MASTER LEASE

(Continued)

 

            Page  
ARTICLE XXXVIII     

BROKERS

     100   
    38.1     

Brokers

     100   
ARTICLE XXXIX     

OFAC

     100   
    39.1     

Anti-Terrorism Representations

     100   
ARTICLE XL     

REIT REQUIREMENTS

     101   
    40.1     

REIT Protection

     101   
ARTICLE XLI     

MISCELLANEOUS

     102   
    41.1     

Survival

     102   
    41.2     

Severability

     102   
    41.3     

Non-Recourse

     102   
    41.4     

Successors and Assigns

     102   
    41.5     

Governing Law

     102   
    41.6     

Waiver of Trial by Jury

     103   
    41.7     

Entire Agreement

     103   
    41.8     

Headings; Consent

     103   
    41.9     

Counterparts

     103   
    41.10     

Interpretation

     104   
    41.11     

Time of Essence

     104   
    41.12     

Further Assurances

     104   
    41.13     

Gaming Regulations

     104   
    41.14     

Certain Provisions of Nevada Law

     104   
    41.15     

Sale/Leaseback Accounting

     105   

EXHIBITS AND SCHEDULES

 

EXHIBIT A    —      LIST OF FACILITIES
EXHIBIT B    —      LEGAL DESCRIPTIONS
EXHIBIT C    —      DECONSOLIDATION GROWTH CAPITAL IMPROVEMENTS
EXHIBIT D    —      GAMING LICENSES
EXHIBIT E    —      FORM OF GUARANTY
EXHIBIT F-1    —      FORM OF NONDISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT F-2    —      FORM OF SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT G    —      FORM OF MEMORANDUM OF LEASE

 

v        

TABLE OF CONTENTS

TO

MASTER LEASE

(Continued)

 

            Page
SCHEDULE 1    —      EXCLUDED ASSETS

 

vi        

MASTER LEASE

This MASTER LEASE (the “ Master Lease ”) is entered into as of April 25, 2016, by and between MGP Lessor, LLC, a Delaware limited liability company ( together with its permitted successors and assigns, “ Landlord ”), and MGM Lessee, LLC, a Delaware limited liability company (together with its permitted successors and assigns, “ Tenant ”).

RECITALS

A.         Capitalized terms used in this Master Lease and not otherwise defined herein are defined in Article II hereof.

B.         Pursuant to that certain Master Contribution Agreement , dated as of the date hereof (the “ Master Contribution Agreement ”), between MGM Resorts International , the one hundred percent (100%) owner of Tenant (“ Tenant’s Parent ”), and MGM Growth Properties LLC (“ MGM REIT ”), Landlord desires to lease the Leased Property to Tenant and Tenant desires to lease the Leased Property from Landlord upon the terms set forth in this Master Lease.

C.         A list of the ten (10) facilities covered by this Master Lease as of the date hereof is attached hereto as Exhibit A (each a “ Facility ,” and collectively, the “ Facilities ”). Each of the Facilities will be subleased by Tenant to Operating Subtenants pursuant to subleases (the “ Operating Subleases ”) between Tenant and each Operating Subtenant.

D.         Tenant and Landlord intend this Master Lease to constitute one indivisible lease of the Facilities and not separate leases governed by similar terms. The Facilities constitute one economic unit, and the Rent and all other provisions of this Master Lease have been negotiated and agreed to based on a demise of all of the Facilities to Tenant as a single, composite, inseparable transaction and would have been substantially different had separate leases or a divisible lease been intended.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

ARTICLE I

LEASED PROPERTY

1.1         Leased Property . Upon and subject to the terms and conditions hereinafter set forth, Landlord leases to Tenant and Tenant leases from Landlord all of Landlord’s rights and interests in and to the following with respect to each of the Facilities (collectively, the “ Leased Property ”):

(a)         the real property or properties described in Part I of Exhibit B attached hereto together with the leasehold estates described in Part II of Exhibit B (as to which this Master Lease will constitute a sublease) (collectively, the “ Land ”);

(b)         all buildings, structures, barges, and other improvements of every kind now or hereafter located on the Land or connected thereto including, but not limited to, alleyways and connecting tunnels, sidewalks, utility pipes, conduits and lines (on-site and off-site to the extent Landlord has obtained any interest in the same), parking areas and roadways appurtenant to such buildings and structures of each such Facility (collectively, the “ Leased Improvements ”); provided, however, that the foregoing shall not affect or contradict the provisions of this Master Lease which specify that Tenant shall be entitled to certain benefits of the Tenant Capital Improvements;

(c)         all easements, rights and appurtenances relating to the Land and the Leased Improvements;

(d)         all equipment, machinery, fixtures, and other items of property, including all components thereof, that are now or hereafter located in, on or used in connection with and permanently affixed to or otherwise incorporated into the Leased Improvements, together with all replacements, modifications, alterations and additions thereto (collectively, the “ Fixtures ”); provided, however, that the foregoing shall not affect or contradict the provisions of this Master Lease which specify that Tenant shall be entitled to certain benefits of the Tenant Capital Improvements; and

(e)         all other properties or rights, real, personal or otherwise, conveyed to Landlord or Landlord’s Subsidiaries pursuant to the Master Contribution Agreement;

in each case, with respect to clauses (b), (d) and (e) above, to the extent constituting “real property” as that term is defined in Treasury Regulation §1.856-3(d).

The Leased Property shall not, for any purposes under this Master Lease, include those assets described on Schedule 1 attached hereto (collectively, “ Excluded Assets ”).

The Leased Property is leased subject to all covenants, conditions, restrictions, easements and other matters affecting the Leased Property as of the Commencement Date and such subsequent covenants, conditions, restrictions, easements and other matters permitted by this Master Lease or as may be agreed to by Landlord or Tenant in accordance with the terms of this Master Lease, whether or not of record, including any matters which would be disclosed by an inspection or accurate survey of the Leased Property.

Notwithstanding the foregoing, following (a) the removal of any Facility from this Master Lease pursuant to Section 1.5 , (b) the assignment by Tenant of its Leasehold Estate with respect to any Facility pursuant to Section 22.2(a)(iii) , (c) the termination of this Master Lease with respect to any Facility pursuant to Section 14.2 , or (d) the termination of the Master Lease with respect to any Facility pursuant to Section 15.1 , such Facility shall no longer constitute Leased Property hereunder.

1.2          Single, Indivisible Lease . (a) This Master Lease constitutes one indivisible lease of the Leased Property and not separate leases governed by similar terms. The Leased Property constitutes one economic unit, and the Rent and all other provisions have been negotiated and agreed to based on a demise of all of the Leased Property to Tenant as a single, composite, inseparable transaction and would have been substantially different had separate leases or a

 

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divisible lease been intended. Except as expressly provided in this Master Lease for specific, isolated purposes (and then only to the extent expressly otherwise stated), all provisions of this Master Lease apply equally and uniformly to all of the Leased Property as one unit. An Event of Default with respect to any portion of the Leased Property is an Event of Default as to all of the Leased Property. Upon the occurrence and during the continuance of any Event of Default, Landlord shall be entitled to exercise any applicable remedies under Article XVI with respect to all of the Leased Property regardless of the portion of the Leased Property to which such Event of Default relates. The parties intend that the provisions of this Master Lease shall at all times be construed, interpreted and applied so as to carry out their mutual objective to create an indivisible lease of all of the Leased Property and, in particular but without limitation, that, for purposes of any assumption, rejection or assignment of this Master Lease under 11 U.S.C. Section 365, or any successor or replacement thereof or any analogous state law, this is one indivisible and non-severable lease and executory contract dealing with one legal and economic unit and that this Master Lease must be assumed, rejected or assigned as a whole with respect to all (and only as to all) of the Leased Property. The parties may amend this Master Lease from time to time to add or remove one or more additional Facilities as part of the Leased Property and such future addition to, or removal from, the Leased Property shall not in any way change the indivisible and nonseverable nature of this Master Lease and all of the foregoing provisions shall continue to apply in full force. Each party agrees that it shall not assert that this Master Lease is not, and shall not challenge the characterization of this Master Lease as, a single indivisible lease of all of the Leased Property. Each party hereby waives any claim or defense based on a recharacterization of this Master Lease as any agreement other than a single indivisible lease of all of the Leased Property.

(b)         Without limiting the generality of the foregoing, Landlord and Tenant acknowledge and agree that (x) none of (1) Landlord’s ability to remove one of more Facilities from this Master Lease pursuant to Section 1.5 , (2) Tenant’s ability to assign its Leasehold Estate with respect to one or more individual Facilities pursuant to Section 22.2 (a)(iii) , (3) Tenant’s or Landlord’s ability to terminate this Master Lease with respect to an affected Facility following certain Casualty Events pursuant to Section 14.2 or (4) Tenant’s or Landlord’s ability to terminate this Master Lease with respect to an affected Facility following certain Condemnations pursuant to Section 15.1 shall in any way change the indivisible and nonseverable nature of this Master Lease (as set forth in this Section 1.2 ) and (y) following any such removal, assignment or termination, this Master Lease shall continue as a single indivisible lease with respect to the remaining Leased Property.

1.3          Term . The “ Term ” of this Master Lease is the Initial Term plus all Renewal Terms, to the extent exercised. The initial term of this Master Lease (the “ Initial Term ”) shall commence on April 25, 2016 (the “ Commencement Date ”) and end on the last day of the calendar month in which the tenth (10th) anniversary of the Commencement Date occurs, subject to renewal as set forth in Section 1.4 below.

1.4          Renewal Terms . (a) The term of this Master Lease may be extended for four (4) separate “ Renewal Terms ” of five (5) years each if: (i) at least twelve (12), but not more than eighteen (18) months prior to the end of the then current Term, Tenant delivers to Landlord a “ Renewal Notice ” that Tenant desires to exercise its right to extend this Master Lease for one (1) Renewal Term; and (ii) no Event of Default shall have occurred and be continuing on the date

 

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Landlord receives the Renewal Notice (the “ Exercise Date ”) or on the last day of the then current Term; provided, however, that if Tenant fails to deliver to Landlord a Notice prior to the date that is twelve (12) months prior to the then current expiration date of the Term that Tenant does not intend to renew in accordance with this Section 1.4 , then it shall automatically and without further action be deemed for all purposes that Tenant has delivered the Renewal Notice required by this Section 1.4(a)(i) . During any such Renewal Term, except as otherwise specifically provided for herein, all of the terms and conditions of this Master Lease shall remain in full force and effect.

(b)         Tenant may exercise such options to renew with respect to all (and no fewer than all) of the Facilities which are subject to this Master Lease as of the Exercise Date.

(c)         During each Renewal Term, Rent shall continue to be equal to Base Rent and Percentage Rent as determined pursuant to the definitions of such terms set forth in this Master Lease; provided, however, that from and after the occurrence of a Deconsolidation Event, Tenant may make an irrevocable election (such election to be effective for the remainder of the Term) by providing Notice to Landlord, effective as of either the date of the Deconsolidation Event or the commencement of any Renewal Term commencing on or after the date of the Notice (as determined in Tenant’s sole discretion), to convert the calculation of Base Rent from the amount set forth in clause (a) of the definition of Base Rent to the amount set forth in clause (b) of the definition of Base Rent. In the event Tenant elects the option described in the preceding sentence, Base Rent shall, effective as of the date selected by Tenant pursuant to the preceding sentence and for each Renewal Term thereafter, equal the amount set forth in the preceding sentence.

1.5          Separation of Leases . (a) From time to time, at the election of Landlord, but only in connection with the sale of a Facility in accordance with Article XVIII , Landlord may remove one or more Facilities in accordance with Article XVIII (individually, “ Removal Facility ,” and collectively, “ Removal Facilities ”) from this Master Lease and place such Removal Facilities in one (1) or more separate leases on terms and conditions substantially similar to, and in any case no less favorable to Tenant than, those set forth in this Master Lease and as otherwise provided in this Section 1.5 (individually, “ Separate Lease ,” and collectively, “ Separate Leases ”), to facilitate the sale of such Removal Facilities.

(b)         If Landlord elects to so remove any Removal Facilities, Landlord shall give Tenant not less than thirty (30) days’ Notice thereof (a “ Removal Notice ”), and Tenant shall thereafter, within said thirty (30)-day period (or such other period of time as Landlord may reasonably require; it being understood that Landlord may delay removal or cancel the Removal Notice in the event that the underlying sale of a Removal Facility is delayed or cancelled for any reason), execute, acknowledge and deliver to the new owner of the Removal Facilities, as designated by Landlord) at no cost or expense to Tenant, one (1) or more Separate Leases with respect to the relevant Removal Facilities effective as of the date set forth in the Removal Notice (“ Removal Date ”) for the remaining Term and on substantially the same terms and conditions as, and in any case no less favorable to Tenant than the terms and conditions of, this Master Lease, except for appropriate adjustments (including to Exhibits and Schedules), including as follows:

 

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(i)         Rent . The initial Base Rent and Percentage Rent for each Removal Facility shall be equal to the Allocable Rent Amount in respect of such Removal Facility and thereafter shall be adjusted on the same basis as provided in this Master Lease; it being understood that the specification in this Section 1.5(b)(i) of the methodology for determining the initial Base Rent and Percentage Rent for a Removal Facility shall not in any way change the indivisible and nonseverable nature of this Master Lease (as set forth in Section 1.2 ).

(ii)         Liabilities and Obligations . The Separate Lease shall provide that Landlord and Tenant shall be responsible for the payment, performance and satisfaction of all of the duties, obligations and liabilities of Landlord and Tenant, respectively, arising under this Master Lease, with respect to the Removal Facility, that were not paid, performed and satisfied in full prior to the commencement date of the Separate Lease, and shall further provide that (x) landlord and tenant under the Separate Lease shall not be responsible for the payment, performance or satisfaction of any duties, obligations or liabilities of Landlord or Tenant under this Master Lease first arising after the Removal Date and (y) Landlord and Tenant and Guarantor shall not be responsible for the payment, performance or satisfaction of any duties, obligations or liabilities of the landlord or tenant under the Separate Lease, except to the extent they are a party to such Separate Lease. Except as provided in clause (iv) below, Landlord and Tenant’s obligations under this Master Lease with respect to the remainder of the Facilities not removed in accordance with this Section 1.5 shall remain unaffected and shall continue in accordance with the terms of this Master Lease.

(iii)         Deletion of REIT Provisions . At the election of Landlord or any new landlord, any one or more of the provisions of the Separate Lease pertaining to the REIT status of any member of Landlord (or any Affiliate of any member of Landlord) shall be deleted.

(iv)         Amendments to this Lease . Upon execution of such Separate Lease, and effective as of the effective date of such Separate Lease, this Master Lease shall be deemed to be amended as follows: (i) the Removal Facilities shall be excluded from the Leased Property hereunder and (ii) Base Rent and Percentage Rent hereunder shall be reduced by the amount of the Allocable Rent Amount with respect to the Removal Facilities. Such amendments shall occur automatically and without the necessity of any further action by Landlord or Tenant, but, at Landlord’s or Tenant’s election, the same shall be reflected in a formal amendment to this Master Lease, which amendment shall be promptly executed by Landlord and Tenant.

(v)         Other Undertakings . Landlord and Tenant shall each take such actions and execute and deliver such documents, including, without limitation, the Separate Lease and new or amended Memorandum(s) of Lease and, if requested by the other, an amendment to this Master Lease, as are reasonably necessary and appropriate to effectuate fully the provisions and intent of this Section 1.5 , and as otherwise are appropriate or as Landlord, Tenant or any title insurer may reasonably request to evidence such removal and new leasing of the Removal Facilities, including memoranda of lease with respect to such Separate Leases and amendments of all existing memoranda of lease with respect to this Master Lease and an amendment of this Master Lease.

(c)         No Cross Default . No default under any Separate Lease shall be a default under this Master Lease and no default under this Master Lease shall be a default under

 

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any Separate Lease. In all cases, so long as any Facility Mortgage shall apply to any Removal Facility or Separate Lease, such Removal Facility and/or Separate Lease shall continue to be subject either to any existing subordination, nondisturbance and attornment agreement with respect to the Master Lease, or subject to a new subordination, nondisturbance and attornment agreement to be delivered by Facility Mortgagee, the landlord under the Separate Lease and Tenant on substantially the same terms and conditions as the existing subordination, nondisturbance and attornment agreement (having regard to the terms and conditions of the Separate Lease).

(d)         Guaranty . Upon the execution of a Separate Lease, Guarantor shall execute and deliver to the new owner of the Removal Facility a new Guaranty of Tenant’s obligations with respect to the Removal Facility. The original Guaranty delivered to Landlord shall be of no further force or effect with respect to any obligations related to the Removal Facilities.

(e)         Costs and Expenses . All costs and expenses relating to a Separate Lease (including reasonable attorneys’ fees and other reasonable, documented out-of-pocket costs incurred by Tenant or Guarantor for outside counsel, if any) shall be borne by Landlord and not Tenant.

(f)         Cooperation . Landlord and Tenant shall cooperate with Gaming Authorities in all reasonable respects to facilitate all necessary regulatory reviews, approvals and/or authorization of the Separate Lease in accordance with applicable Gaming Regulations.

ARTICLE II

DEFINITIONS

2.1         Definitions . For all purposes of this Master Lease, except as otherwise expressly provided or unless the context otherwise requires, (i) the terms defined in this Article II have the meanings assigned to them in this Article and include the plural as well as the singular; all accounting terms not otherwise defined herein have the meanings assigned to them in accordance with GAAP; (ii) all references in this Master Lease to designated “Articles,” “Sections” and other subdivisions are to the designated Articles, Sections and other subdivisions of this Master Lease; (iii) the word “including” shall have the same meaning as the phrase “including, without limitation,” and other similar phrases; (iv) the words “herein,” “hereof” and “hereunder” and other words of similar import refer to this Master Lease as a whole and not to any particular Article, Section or other subdivision; and (v) for the calculation of any financial ratios or tests referenced in this Master Lease (including the Adjusted Revenue to Rent Ratio, and the Indebtedness to EBITDA Ratio), this Master Lease, regardless of its treatment under GAAP, shall be deemed to be an operating lease and the Rent payable hereunder shall be treated as an operating expense and shall not constitute Indebtedness or interest expense.

10 Year Treasury Yield : The yield published in The Wall Street Journal from time to time for the “U.S. 10 Year Treasury Note.” If The Wall Street Journal ceases to publish the “U.S. 10 Year Treasury Note,” Landlord shall select an equivalent publication that publishes such “U.S. 10 Year Treasury Note,” and if such “U.S. 10 Year Treasury Note” is no longer

 

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generally published or is limited, regulated or administered by a governmental or quasi-governmental body, then Landlord shall select a comparable yield index.

Accounts : All accounts, including deposit accounts, all rents, profits, income, revenues or rights to payment or reimbursement derived from the use of any space within the Leased Property and/or from goods sold or leased or services rendered from the Leased Property (including, without limitation, from goods sold or leased or services rendered from the Leased Property by any subtenant) and all accounts receivable, in each case whether or not evidenced by a contract, document, instrument or chattel paper and whether or not earned by performance, including without limitation, the right to payment of management fees and all proceeds of the foregoing.

Additional Charges : All Impositions and all other amounts, liabilities and obligations which Tenant assumes or agrees to pay under this Master Lease and, in the event of any failure on the part of Tenant to pay any of those items, except where such failure is due to the acts or omissions of Landlord, every fine, penalty, interest and cost which may be added for non-payment or late payment of such items.

Adjusted Revenue : For any Test Period, with respect to any Person or Facility, EBITDA plus, without duplication, any rent expense associated with any ground leases forming part of the Leased Property and this Master Lease (as may be amended from time to time).

Adjusted Revenue to Rent Ratio : As at any date of determination, the ratio for any period of Adjusted Revenue derived from the Facilities by Tenant or its Affiliates (without duplication) to Rent. For purposes of calculating the Adjusted Revenue to Rent Ratio, Adjusted Revenue and Rent shall be calculated on a pro forma basis to give effect to any increase or decrease in Rent as a result of the addition or removal of Leased Property to this Master Lease during any Test Period as if such increase or decrease had been effected on the first day of such Test Period.

Affiliate : When used with respect to any corporation, limited liability company, partnership or any other Person, the term “ Affiliate ” shall mean any Person which, directly or indirectly, controls or is controlled by or is under common control with such other Person. For the purposes of this definition, “ control ” (including the correlative meanings of the terms “controlled by” and “under common control with”), as used with respect to any person, shall mean the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of such person, through the ownership of voting securities, partnership interests or other equity interests.

A greed Deconsolidation Growth Capital Improvement Fair Market Value : As defined in Section 10.3(d) .

Allocable Percentage Share : For any Facility, the fraction converted to a percentage determined by dividing the EBITDA for such Facility by the EBITDA for all Facilities then subject to the Master Lease, with each such EBITDA being based on the EBITDA for the most recent 12 month period required to be reported by Tenant to Landlord.

 

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Allocable Rent Amount : As of any date of determination, with respect to one or more Facilities, and with respect to any amount of Rent in question (whether Base Rent or Percentage Rent), the amount determined by multiplying the then current total amount of Rent in question by the Allocable Percentage Share of such Facility(ies). To the extent any of the Development Facilities are purchased by Landlord and made subject to this Master Lease as a Leased Property in accordance with Section 7.4 , but have not been subject to this Master Lease as Leased Property for the entirety of the applicable 12 month period, the Allocable Rent Amount calculation for all purposes of this Master Lease that includes any such Development Facility shall reflect, with respect to any such Development Facility, the 12 month period immediately preceding the date of determination of Allocable Rent Amount regardless of the date on which such Development Facility may have been included in this Master Lease. Notwithstanding the preceding provisions of this definition, if a Deconsolidation Event has previously occurred, as of any date of determination of Allocable Rent Amount resulting from (i) a Casualty Event or (ii) Landlord’s failure to comply with the provisions of Section 8.2(b) , in either case, with respect to one or more Facilities and with respect to any amount of rent in question (whether Base Rent or Percentage Rent), the “Allocable Rent Amount” for each Facility shall mean the percentage of the Rent in question determined based on the relative fair values of each Facility as determined in accordance with GAAP as of the date of the Deconsolidation Event. In the event that Landlord and Tenant are unable to agree on such relative fair value of each Facility, either party may elect to have the same determined by an Expert in accordance with Section 34.1 .

Appraiser : As defined in Section 3.5 .

Assumed Rate : The 10 Year Treasury Yield plus six percent (6%).

Award : All compensation, sums or anything of value awarded, paid or received on a total or partial Condemnation.

Base Rent : During the Initial Term, an annual amount equal to Four Hundred Ninety-Five Million Dollars ($495,000,000); provided, however, that commencing on April 1, 2017 and continuing at the beginning of each Lease Year thereafter during the Initial Term, the Base Rent shall increase to an annual amount equal to the sum of (i) the Base Rent for the immediately preceding Lease Year, and (ii) the Escalation.

(a)         The Base Rent for the first year of each Fixed Renewal Term shall be an annual amount equal to the sum of (i) the Base Rent for the immediately preceding Lease Year, and (ii) the Escalation. Commencing with the beginning of the second (2nd) Lease Year of any Fixed Renewal Term and continuing at the beginning of each Lease Year thereafter during such Fixed Renewal Term, the Base Rent shall increase to an annual amount equal to the sum of (i) the Base Rent for the immediately preceding Lease Year, and (ii) the Escalation.

(b)         If applicable in accordance with Section 1.4(c) , Base Rent for the first (1st) full Lease Year in which Base Rent is calculated pursuant to this clause (b) shall be equal to the greater of (i) the amount determined pursuant to subparagraph (a) above, and (ii) the Fair Market Rent as determined pursuant to Section 3.5 hereof (and the Base Rent for any portion of a Lease Year for which Base Rent is calculated pursuant to this clause (b) prior to such first (1st)

 

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full Lease Year shall be determined by prorating such amount). The Base Rent determined in accordance with the preceding sentence shall be payable throughout the remainder of the Term (including any additional Renewal Terms) except that the Base Rent shall increase to an annual amount equal to the sum of (x) the Base Rent for the immediately preceding Lease Year, and (y) the Escalation (1) if the calculation of Base Rent pursuant to this clause (b) is effective as of the beginning of any Lease Year (i.e. April 1), commencing on the beginning of the next Lease Year, and continuing on the beginning of each Lease Year thereafter throughout the remainder of the Term (including any additional Renewal Terms thereafter), or (2) if the preceding clause (1) does not apply, then commencing on the beginning of the second (2nd) Lease Year following the date on which the calculation of Base Rent pursuant to this clause (b) is effective, and continuing on the beginning of each Lease Year thereafter throughout the remainder of the Term (including any additional Renewal Terms thereafter). Percentage Rent shall continue to be payable throughout each Fair Market Renewal Term.

Base Rent shall be subject to further adjustment as and to the extent provided in Sections 7.4, 10.3 and 14.6 .

Business Day : Each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which national banks in the City of New York, New York are authorized, or obligated, by law or executive order, to close.

Capital Improvements : With respect to any Facility, any improvements or alterations or modifications of the Leased Improvements, including without limitation capital improvements and structural alterations, modifications or improvements, or one or more additional structures annexed to any portion of any of the Leased Improvements of such Facility, or the expansion of existing improvements, which are constructed on any parcel or portion of the Land of such Facility, during the Term, including construction of a new wing or new story, in each case which are permanently affixed to the Leased Property such that they constitute real property under applicable Legal Requirements.

Capital Lease : As applied to any Person, 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, that any lease that is accounted for by any Person as an operating lease as of the Commencement Date and any similar lease entered into after the Commencement Date by any Person may, in the sole discretion of Tenant, be treated as an operating lease and not as a Capital Lease and provided, further, that, for the avoidance of doubt, this Master Lease will not be considered a Capital Lease).

Capital Lease Obligations : For any Person, all obligations of such Person to pay rent or other amounts under a Capital Lease, and the amount of such obligations shall be the capitalized amount thereof, determined in accordance with GAAP.

Cash : Cash and cash equivalents and all instruments evidencing the same or any right thereto and all proceeds thereof.

Casualty Event : Any loss of title or any loss of or damage to or destruction of, or any Condemnation or other taking (including by any governmental authority) of, any portion of

 

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the Leased Property for which Landlord, Tenant or any Operating Subtenant or any of their respective Subsidiaries receives cash insurance proceeds or proceeds of a Condemnation award or other similar compensation (excluding proceeds of business interruption insurance). “ Casualty Event ” shall include, but not be limited to, any taking of all or any portion of the Leased Property, in or by Condemnation or other eminent domain proceedings pursuant to any applicable law, or by reason of the temporary requisition of the use or occupancy of all or any part of any real property of or any part thereof by any governmental authority, civil or military.

Casualty Shortfall : As defined in Section 14.2(g) .

Code : The Internal Revenue Code of 1986 as amended from time to time.

Commencement Date : As defined in Section 1.3 .

Common Units : Shall have the meaning give to such term in the Operating Partnership’s Limited Partnership Agreement.

Condemnation : A taking by the exercise of any governmental power, whether by legal proceedings or otherwise, by a Condemnor or a voluntary sale or transfer by Landlord to any Condemnor, either under threat of condemnation or while legal proceedings for condemnation are pending.

Condemnor : Any public or quasi-public authority, or private corporation or individual, having the power of Condemnation.

Confidential Information : Any and all financial, technical, proprietary, confidential, and other information, including data, reports, interpretations, forecasts, analyses, compilations, studies, summaries, extracts, records, know-how, statements (written or oral) or other documents of any kind, that contain information concerning the business and affairs of Landlord or Tenant or their respective Related Persons, whether furnished before or after the date of this Master Lease, and regardless of the manner in which it was furnished, and any material prepared by either Landlord or Tenant or their respective Related Persons, in whatever form maintained, containing, reflecting or based upon, in whole or in part, any such information; provided, however, that “ Confidential Information ” shall not include information which: (i) was or becomes generally available to the public other than as a result of a disclosure by either Landlord or Tenant or their respective Related Persons in breach of this Master Lease; (ii) was or becomes available to either Landlord or Tenant or their respective Related Persons on a non-confidential basis prior to its disclosure hereunder as evidenced by the written records of Landlord or Tenant or their Related Persons, provided, that the source of the information is not bound by a confidentiality agreement or otherwise prohibited from transmitting such information by a contractual, legal or fiduciary duty; or (iii) was independently developed by the other without the use of any Confidential Information, as evidenced by its written records.

Control : The ability, directly or indirectly, whether through the ownership of voting securities, by contract, or otherwise (including by being the managing member or general partner of the Person in question), to (i) direct or cause the direction of the management and policies of a Person or (ii) conduct the day-to-day business operations of a Person.

 

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CPI : The United States Department of Labor, Bureau of Labor Statistics Revised Consumer Price Index for All Urban Consumers (1982-84=100), U.S. City Average, All Items, or, if that index is not available at the time in question, the index designated by such Department as the successor to such index, and if there is no index so designated, an index for an area in the United States that most closely corresponds to the entire United States, published by such Department, or if none, by any other instrumentality of the United States.

CPI Increase : The product of (i) the CPI most recently published as of the beginning of each Lease Year, divided by (ii) the CPI most recently published as of the beginning of the first Lease Year. If the product is less than one, the CPI Increase shall be equal to one.

Date of Taking : The date the Condemnor has the right to possession of the property being condemned.

Debt Agreement : If designated by Tenant to Landlord in writing to be included in the definition of “ Debt Agreement ,” one or more (A) debt facilities or commercial paper facilities, providing for revolving credit loans, term loans, receivables financing (including through the sale of receivables to lenders or to special purpose entities formed to borrow from lenders against such receivables) or letters of credit, (B) debt securities, indentures or other forms of debt financing (including convertible or exchangeable debt instruments or bank guarantees or bankers’ acceptances), or (C) instruments or agreements evidencing any other indebtedness, in each case, with the same or different borrowers or issuers and, in each case, (i) entered into from time to time by Tenant, any Operating Subtenant and/or their respective Subsidiaries, (ii) as amended, supplemented, modified, extended, restructured, renewed, refinanced, restated, replaced or refunded in whole or in part from time to time, (iii) which may be secured by assets of Tenant, any Operating Subtenant and/or their respective Subsidiaries, including, but not limited to, their Cash, Accounts, Tenant’s Property, real property and leasehold estates in real property (including this Master Lease) and (iv) which shall provide Landlord, in accordance with Section 17.3 hereof, the right to receive copies of notices of Specified Debt Agreement Defaults thereunder.

Deconsolidation Event : A transaction or series of transactions which upon consummation requires Tenant’s Parent to cease consolidation of Landlord and MGM REIT within Tenant Parent’s consolidated financial statements prepared in accordance with GAAP. For the avoidance of doubt, a sale, transfer, assignment or any other disposition (i) by Tenant of Tenant’s leasehold estate in one or more individual Facilities to a Person that is not an Affiliate of Tenant, or (ii) by Landlord of Landlord’s fee interest in one or more individual Facilities to a Person that is not an Affiliate of Landlord, shall not constitute a Deconsolidation Event as to any such Facility (or any other Facility).

Deconsolidation Growth Capital Improvement : Any Tenant Capital Improvement described in Exhibit C or constructed between the Commencement Date and the occurrence of a Deconsolidation Event which (i) has not been funded by Landlord in accordance with Section 10.5 , and (ii) which is not a Deconsolidation Maintenance Capital Improvement as reasonably agreed by Landlord and Tenant and if Landlord and Tenant are unable to agree, then as determined by Experts in accordance with Section 34.1.

 

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Deconsolidation Growth Capital Improvement Purchase Price : The fair market value based on the amount that would be paid by a willing purchaser to a willing seller if neither were under any compulsion to buy or sell, as of the date of a Deconsolidation Event, of all Deconsolidation Growth Capital Improvements.

Deconsolidation Maintenance Capital Improvement : Any Tenant Capital Improvement constructed between the Commencement Date and the occurrence of a Deconsolidation Event that qualifies as a normal tenant improvement in accordance with GAAP and therefore is recognized as a fixed asset of Tenant or any Operating Subtenant for accounting purposes. For this purpose, normal tenant improvements exclude the costs of structural elements of the Facilities, including capital improvements that expand the footprint or square footage of the Facilities or extend the useful life of the Facilities. In addition, equipment that would be a necessary improvement for any lessee, including elevators, air conditioning systems, or electrical wiring that are integral to the Facilities that would not qualify as normal tenant improvements under GAAP shall not constitute Deconsolidation Maintenance Capital Improvements.

Development Facilities : Those certain properties under development by Affiliates of Tenant located in National Harbor, Maryland and Springfield, Massachusetts as more particularly described in Exhibit A .

Discretionary Transferee : A transferee that meets all of the following requirements:

(a) such transferee has:

(1)         (i) except as provided in (a)(1)(ii) or (iii) below, at least five (5) years of experience (directly or through one or more of its Subsidiaries) operating or managing casino properties with revenues in the immediately preceding fiscal year of at least (x) Five Hundred Million Dollars ($500,000,000) in the case of a transfer of any Facility located in Las Vegas, Nevada, (y) Two Hundred Fifty Million Dollars ($250,000,000) in the case of a transfer of any Facility not located in Las Vegas, Nevada or (z) Seven Hundred Fifty Million Dollars ($750,000,000) in the case of a transfer of all Facilities then under the Master Lease (or, in any case, retains a manager with such qualifications, which manager shall not be replaced other than by another manager meeting the foregoing requirements) and as to which the primary business of such Person and its Affiliates taken as a whole is not the leasing of properties to gaming operators,

(ii) in the case of a Permitted Leasehold Mortgagee Foreclosing Party at least five (5) years of experience (directly or through one or more of its Subsidiaries) operating or managing casino properties (or, in any case, retains a manager with such qualifications, which manager shall not be replaced other than by another manager meeting the foregoing requirements), or

(iii) in the case of a transfer of any Facility of which no material portion is a Gaming Facility, at least five (5) years of experience (directly or through one or more of its Subsidiaries) operating or managing properties similar to the Facility being transferred (or

 

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retains a manager with such qualifications, which manager shall not be replaced other than by another manager meeting the foregoing requirements); or

(2) agreement(s) in place in a form reasonably satisfactory to Landlord to retain for a period of eighteen (18) months (or more) after the effective time of the transfer at least

(i) eighty percent (80%) of Tenant Parties and their respective Subsidiaries personnel employed at the Facilities who have employment contracts as of the date of the relevant agreement to transfer, and

(ii) eighty percent (80%) of Tenant Parties and Tenant’s Parent’s ten most highly compensated corporate employees as of the date of the relevant agreement to transfer based on total compensation determined in accordance with Item 402 of Regulation S-K of the Exchange Act, as amended;

(b) such transferee (directly or through one or more of its Subsidiaries) is licensed or certified by each Gaming Authority with jurisdiction over any portion of the Leased Property as of the date of any proposed assignment or transfer to such entity (or will be so licensed upon its assumption of the Master Lease);

(c) such transferee is Solvent, and, other than in the case of a Permitted Leasehold Mortgagee Foreclosing Party, if such transferee has a Parent Company, the Parent Company of such transferee is Solvent, and

(d)        (i) except in the case of clause (ii) below, (x) the Parent Company of such transferee or, if such transferee does not have a Parent Company, such transferee, has sufficient assets so that, after giving effect to its assumption of Tenant’s obligations hereunder or the applicable assignment or other transaction, its Indebtedness to EBITDA Ratio on a consolidated basis in accordance with GAAP is less than 6:1 on a pro forma basis based on projected earnings and after giving effect to the proposed transaction, or (y) an entity that has an investment grade credit rating from a nationally recognized rating agency with respect to such entity’s long term, unsecured debt has provided a Guaranty, or

(ii) in the case of a Permitted Leasehold Mortgagee Foreclosing Party, (x) Tenant has an Indebtedness to EBITDA Ratio of less than 6:1 on a pro forma basis based on projected earnings and after giving effect to the proposed transaction, (y) an entity that has an investment grade credit rating from a nationally recognized rating agency with respect to such entity’s long term, unsecured debt has provided a Guaranty, or (z) such entity is an entity whose only asset is or will be ownership of the leasehold estate created by this Master Lease and related assets reasonably necessary for conduct of the Primary Intended Use with respect to the Facilities and who, after giving effect to such entity becoming Tenant hereunder, has no Indebtedness.

“ Dollars ” and “ $ ”: The lawful money of the United States.

EBITDA : For any Test Period and with respect to any Person or Facility (as applicable), the sum of (a) Net Income of such Person or Facility for that period, plus or minus the following to the extent reflected in Net Income for that period, plus (b) any extraordinary

 

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loss, and, without duplication, any loss associated with the early retirement of Indebtedness and with any disposition not in the ordinary course of business, minus (c) any extraordinary gain, and, without duplication, any gains associated with the early retirement of Indebtedness and with any disposition not in the ordinary course of business, plus (d) Interest Charges of such Person or Facility for that period, plus (e) the aggregate amount of expense for federal, foreign, state and local taxes on or measured by income of such Person or Facility for that period (whether or not payable during that period), minus (f) the aggregate amount of benefit for federal, foreign, state and local taxes on or measured by income of such Person or Facility for that period (whether or not receivable during that period), plus (g) depreciation, amortization and all non-recurring and/or other non-cash expenses to the extent deducted in arriving at Net Income for that period, plus (h) expenses classified as “pre-opening and start-up expenses” on the applicable financial statements of that Person or Facility for that fiscal period, plus (i) non-controlling interest reflected in Net Income, in each case as determined in accordance with GAAP.

Encumbrance : Any mortgage, deed of trust, lien, encumbrance or other matter affecting title to any of the Leased Property, or any portion thereof or interest therein.

End of Term Asset Transfer Notice : As defined in Section 36.1 .

Environmental Costs : As defined in Section 32.4 .

Environmental Laws : Any and all federal, state, municipal and local laws, statutes, ordinances, rules, regulations, guidances, policies, orders, decrees or judgments, whether statutory or common law, as amended from time to time, now or hereafter in effect, or promulgated, pertaining to the environment, public health and safety and industrial hygiene, including the use, generation, manufacture, production, storage, release, discharge, disposal, handling, treatment, removal, decontamination, cleanup, transportation or regulation of any Hazardous Substance, including the Industrial Site Recovery Act, the Clean Air Act, the Clean Water Act, the Toxic Substances Control Act, the Comprehensive Environmental Response Compensation and Liability Act, the Resource Conservation and Recovery Act, the Federal Insecticide, Fungicide, Rodenticide Act, the Safe Drinking Water Act and the Occupational Safety and Health Act.

Equity Interests : 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.

Escalated Base Rent : For any Lease Year (other than the first Lease Year and, if applicable, the period beginning on the date on which Base Rent begins being calculated in accordance with clause (b) of the definition of Base Rent until the first applicable Escalation thereafter in accordance with clause (b) of the definition of Base Rent), an amount equal to one hundred and two percent (102%) of the Base Rent as of the end of the immediately preceding Lease Year.

 

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Escalation : For any Lease Year (other than the first Lease Year), an amount equal to the excess of (i) the Escalated Base Rent for such Lease Year over (ii) the Base Rent for the immediately preceding Lease Year; provided, that, beginning with the Lease Year commencing on April 1, 2022, if adding such amount to the Rent for the immediately preceding Lease Year would have resulted in a Net Revenue to Rent ratio for such immediately preceding Lease Year of less than 6.25:1, then, the escalation for such Lease Year shall be zero.

Event of Default : As defined in Article XVI .

Event of Default Notice : As defined in Section 16.2(b) .

Exchange Act : The U.S. Securities Exchange Act of 1934 and any statute successor thereto, in each case as amended from time to time.

Excluded Assets : As defined in Section 1.1 .

Excluded Sublease : The Operating Subleases and any subleases of the Leased Property, or any portion thereof, that are in existence as of the date hereof.

Exercise Date : As defined in Section 1.4 .

Expert : An independent third party professional, with expertise in respect of a matter at issue, appointed by the agreement of Landlord and Tenant or otherwise in accordance with Article XXXIV hereof.

Facilit(y)(ies) : As defined in the Recitals, but excluding, from time to time, any Removal Facilities or Facilities otherwise removed from this Master Lease in accordance with the terms of this Master Lease, and including, from time to time, any Development Facilities or other facilities otherwise added to this Master Lease in accordance with the terms hereof.

Facility Mortgage : As defined in Section 13.1 .

Facility Mortgage Documents : With respect to each Facility Mortgage and Facility Mortgagee, the applicable Facility Mortgage, loan agreement, debt agreement, credit agreement or indenture, lease, note, collateral assignment instruments, guarantees, indemnity agreements and other documents or instruments evidencing, securing or otherwise relating to the loan made, credit extended, or lease or other financing vehicle entered into pursuant thereto.

Facility Mortgagee : As defined in Section 13.1 .

Fair Market Renewal Terms : Any Renewal Term as to which Tenant has elected to convert the calculation of Base Rent to the amount set forth in clause (b) of the definition of Base Rent pursuant to Section 1.4(c) and each Renewal Term thereafter.

Fair Market Rent : With respect to the Leased Property or any Facility, at any time in question, the prevailing fair market Base Rent which would be determined in an arm’s-length negotiation by Landlord and Tenant if neither party were under any compulsion to enter into a lease, taking into account all of the material terms and conditions of this Master Lease

 

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(including the obligation to pay Percentage Rent and Additional Charges and the presence of any remaining Renewal Terms) and, taking into account the fact that Landlord will not be entitled to the benefit of any of Tenant’s Property other than its rights with respect to Tenant’s Property pursuant to Article XXXVI , for a five-year term beginning as of the commencement of the applicable Renewal Term, such Fair Market Rent to be determined by mutual agreement by the parties or in accordance with Section 3.5 .

Financial Statements : (i) For a Fiscal Year, consolidated statements of Tenant’s Parent and its Subsidiaries of operations, shareholders’ equity and cash flows for such Fiscal Year and the related consolidated balance sheet as at the end of such Fiscal Year, prepared in accordance with GAAP as at such date and audited by a “big four” or other independent public accountants of recognized standing, and (ii) for each fiscal quarter (other than the fourth fiscal quarter in any Fiscal Year), the consolidated statement of operations of Tenant’s Parent and its Subsidiaries for such fiscal quarter, the consolidated statement of cash flows for the portion of the Fiscal Year ended with such fiscal quarter and the related consolidated balance sheet as at the end of such fiscal quarter, prepared in accordance with GAAP.

Fiscal Year : The annual period commencing January 1 and terminating December 31 of each year.

Fixed Renewal Terms: Each Renewal Term other than any Fair Market Renewal Term.

Fixtures : As defined in Section 1.1(d) .

Foreclosure Assignment: As defined in Section 22.2(a)(ii) .

Foreclosure COC : As defined in Section 22.2(a)(ii) .

Foreclosure Purchaser: As defined in Section 31.1 .

GAAP : Generally accepted accounting principles in the United States set forth in the Financial Accounting Standards Board (FASB) Accounting Standards Codification ® and rules and interpretive releases of the Securities and Exchange Commission under authority of federal securities laws, that are applicable to the circumstances as of the date of determination, consistently applied; provided, that if any change in accounting principles is required by the promulgation of any rule, regulation, pronouncement or opinion by the FASB or the Securities and Exchange Commission and such change results in a change in the method of calculation of any financial ratio or term in this Master Lease, then Tenant and Landlord shall negotiate in good faith in order to amend such provision so as to equitably reflect such change with the desired result that the criteria for evaluation the relevant Person’s financial condition shall be the same after such change as if such change had not occurred ; provided further that until such time as an amendment shall have been executed, all such financial covenants and terms in this Master Lease shall continue to be calculated or construed as if such change had not occurred.

Gaming Authority : As defined in the definition of Gaming License.

 

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Gaming Corridor : shall mean the greater Las Vegas Strip area bounded on the south by St. Rose Parkway (but, for the avoidance of doubt, including the M Resort), the north by US 95, on the east by Paradise Road or Maryland Parkway, as applicable, and on the west by Decatur Boulevard.

Gaming Equipment : all equipment, software systems and/or gaming devices used to conduct gambling games authorized by applicable Gaming Regulations at a Gaming Facility including without limitation, all slot machines, video lottery terminals, table games, gaming kiosks, pari-mutuel wagering systems, and/or other software systems and devices used now or in the future (including any variation or derivative of any of the foregoing, or any newly created equipment, software system or gaming device) for the purposes of conducting gambling games.

Gaming Facility : The portion of any property upon which Gaming Equipment is utilized to generate gaming revenues in accordance with a required Gaming License.

Gaming License : Any license, permit, approval, finding of suitability , finding of qualification or other authorization issued by a state or local licensing or regulatory agency, commission, board or other governmental body (each a “ Gaming Authority ”) to operate, carry on or conduct any gambling game, race book or sports pool, pari-mutuel wagering and/or offer for play any Gaming Equipment on the Leased Property, as required by any Gaming Regulation, including each of the licenses, permits or other authorizations set forth on Exhibit D, as amended from time to time, and those related to any Facilities that are added to this Master Lease after the date hereof.

Gaming Regulation(s) : Any and all laws, statutes, ordinances, rules, regulations, policies, orders, resolutions, codes, decrees or judgments, and Gaming License conditions or restrictions, and requirements of any agreement with a local municipality, as amended from time to time, now or hereafter in effect or promulgated, pertaining to the operation, control, maintenance or Capital Improvement of a Gaming Facility or the conduct of a Person holding a Gaming License, including, without limitation, any contractual requirements or requirements imposed by a regulatory agency, commission, board, municipality, county, parish or other governmental body (including any Gaming Authority) pursuant to the jurisdiction and authority granted to it under applicable law.

Ground Leased Property : The real property leased pursuant to the Ground Leases.

Ground Leases : Those certain leases with respect to real property that is a portion of the Leased Property, pursuant to which Landlord is a tenant and which leases have either been approved by Tenant or are in existence as of the date hereof and listed on Part II of Exhibit B hereto.

Ground Lessor : As defined in Section 8.4(a) .

Guarantor : Tenant’s Parent or any replacement guarantor pursuant to a replacement guaranty given in accordance with this Master Lease or consented to by Landlord.

 

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Guaranty : That certain Guaranty of Master Lease dated as of the date hereof, a form of which is attached as Exhibit E hereto, as the same may be amended, supplemented or replaced from time to time, by and between Tenant’s Parent and Landlord, and any other form of guaranty in form and substance reasonably satisfactory to Landlord executed by a Guarantor in favor of Landlord (as the same may be amended, supplemented or replaced from time to time) pursuant to which such Guarantor agrees to guaranty all of the obligations of Tenant hereunder.

Handling : As defined in Section 32.4 .

Hazardous Substances : Collectively, any petroleum, petroleum product or by product or any substance, material or waste that is defined, regulated or classified pursuant to any applicable Environmental Law as “hazardous.” “toxic,” a “pollutant,” a “contaminant,” or words of similar meaning and regulatory effect.

Identified Subleases : Those certain leases and/or subleases identified in a letter of even date herewith from Tenant to Landlord.

Impositions : All taxes, special and general assessments, including assessments for public improvements or benefits, whether or not commenced or completed prior to the date hereof and whether or not to be completed within the Term, rents or other amounts payable under any Ground Leases, water rents, rates and charges, commercial rent taxes, sewer and other utility rents, rates and charges, excise tax levies, fees including license, permit, inspection, authorization and similar fees, and other governmental impositions, levies and charges of every kind and nature whatsoever, that may be assessed, levied, confirmed, imposed or become a lien on the Leased Property or any part thereof or any rent therefore or any estate, right, title or interest therein or any occupancy, operation, use or possession of, or sales from or activity conducted on or in connection with the Leased Property or the leasing or use of the Leased Property or any part thereof prior to, during or with respect to any period during the Term hereof through the expiration or earlier termination of this Master Lease together with (i) any taxes and assessments that may be levied, assessed or imposed upon the gross income arising from any Rent or in lieu of or as a substitute, in whole or in part, for any Imposition and (ii) all interest and penalties on the foregoing attributable to any failure in payment by Tenant (other than failures arising from the acts of Landlord). Except as described in clause (ii) above, the term “Impositions” shall, however, not include any of the following, all of which shall be the responsibility of Landlord: (a) any franchise, income, excess profits, estate, inheritance, succession, transfer, gift, corporation, business, capital levy, or profits tax of Landlord, (b) (x) any tax imposed with respect to the sale, exchange or other disposition by Landlord of the fee estate in the Leased Property and (y) the incremental portion of any of the items in this paragraph that would not have been levied, imposed or assessed but for any prohibited sale of the fee estate in the Leased Property, in each case during the period from the date of this Master Lease through the expiration or earlier termination of the Master Lease, and (c) interest, penalties and other charges with respect to the foregoing items “a” and “b”.

Indebtedness : Of any Person, without duplication, (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or similar instruments; (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person;

 

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(d) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding accounts payable and accrued obligations incurred in the ordinary course of business); (e) all Indebtedness of others to the extent secured by any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; provided, 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) all Capital Lease Obligations of such Person; (g) the net amount of the obligations of such Person in respect of interest rate protection agreements, foreign currency exchange agreements or other interest or exchange rate hedging arrangements (including 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 ten Business Days; and (i) all guaranty obligations of such Person in respect of Indebtedness of others of the kinds referred to in clauses (a) through (h) above; provided, that for purposes of this definition, deferred purchase price obligations shall be calculated based on the net present value thereof. 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 referred to in clause (g) above of any Person shall be zero unless and until such Indebtedness becomes due, in which case the amount of such Indebtedness shall be the amount due that is payable by such Person. The amount of Indebtedness of the type described in clause (d) shall be determined in accordance with GAAP.

Indebtedness to EBITDA Ratio : As at any date of determination and with respect to any transferee, the ratio of (a) Indebtedness of the transferee and its subsidiaries on a consolidated basis (excluding (i) Indebtedness of the type referenced in clauses (g) or (h) of the definition of Indebtedness or Indebtedness referred to in clauses (e) or (j) of the definition of Indebtedness to the extent relating to Indebtedness of the type referenced in clauses (g) or (h) of the definition of Indebtedness), to (b) EBITDA of the transferee and its consolidated subsidiaries for the Test Period most recently ended prior to such date for which financial statements are available. For purposes of calculating the Indebtedness to EBITDA Ratio, EBITDA shall be calculated on a pro forma basis (and shall be calculated, except for pro forma adjustments reasonably contemplated by the potential transferee which may be included in such calculations, otherwise in accordance with Regulation S-X under the Securities Act) to give effect to any material acquisitions and material asset sales consummated by the transferee or any such subsidiary since the beginning of such Test Period as if each such material acquisition had been effected on the first day of such Test Period and as if each such material asset sale had been consummated on the day prior to the first day of such Test Period. In addition, for the avoidance of doubt, (i) if the transferee or any such subsidiary has incurred any Indebtedness or repaid, repurchased, acquired, defeased or otherwise discharged any Indebtedness since the end of the applicable Test Period, Indebtedness shall be calculated (for purposes of this definition) after giving effect on a pro forma basis to such incurrence, repayment, repurchase, acquisition, defeasance or discharge and the applications of any proceeds thereof as if it had occurred prior to the first day of such Test Period and (ii) the Indebtedness to EBITDA Ratio shall give pro forma

 

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effect to the transactions whereby the applicable transferee becomes party to the Master Lease permitted under Section 22.2 .

Initial Term : As defined in Section 1.3 .

Insurance Requirements : The terms of any insurance policy required by this Master Lease and all requirements of the issuer of any such policy and of any insurance board, association, organization or company necessary for the maintenance of any such policy.

Intellectual Property License Agreement : That certain Intellectual Property License Agreement, dated as of the date hereof, between Tenant’s Parent and MGM REIT.

Interest Charges : For any Person, as of the last day of any fiscal period, the sum of (a) all interest, fees, prepayment premiums, debt discount, charges and related expenses paid or payable (without duplication) for that fiscal period by that Person to a lender in connection with borrowed money (including any obligations for fees, charges and related expenses payable to the issuer of any letter of credit) or the deferred purchase price of assets that are considered “interest expense” under GAAP, plus (b) the portion of rent paid or payable (without duplication) for that fiscal period by that Person under Capital Lease Obligations that should be treated as interest in accordance with FASB Accounting Standard Codification No. 840.

Investment Fund : A bona fide private equity fund or bona fide investment vehicle arranged by and managed by or controlled by, or under common control with, a private equity fund (excluding any private equity fund investment vehicle the primary assets of which are Tenant and its Subsidiaries and/or this Master Lease and assets related thereto) that is engaged in making, purchasing, funding or otherwise investing in a diversified portfolio of businesses and companies and is organized primarily for the purpose of making equity investments in companies.

Land : As defined in Section 1.1(a) .

Landlord : As defined in the preamble.

Landlord Approved Capital Improvements : As defined in Section 10.1(b) .

Landlord Change of Control : (i) Any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act, as amended from time to time, and any successor statute) other than Tenant’s Parent and its Affiliates, shall have acquired direct or indirect beneficial ownership or control of thirty-five percent (35%) or more on a fully diluted basis of the direct or indirect voting power in the Equity Interests of Landlord entitled to vote in an election of directors of Landlord or its direct or indirect parent, (ii) except as permitted or required hereunder, the direct or indirect sale by Landlord or its direct or indirect parent of all or substantially all of Landlord’s assets, whether held directly or through Subsidiaries, relating to the Facilities in one transaction or in a series of related transactions (excluding sales to Landlord or its Subsidiaries), (iii) Landlord ceasing to be a wholly-owned and controlled Subsidiary (directly or indirectly) of Operating Partnership , or (iv) Landlord or its direct or indirect parent consolidates with, or merges with or into, any Person, or any Person consolidates with, or merges with or into, Landlord or its direct or indirect parent, in any such event pursuant to a transaction

 

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in which any of the outstanding Equity Interests of Landlord or its direct or indirect parent ordinarily entitled to vote in an election of directors of Landlord or its direct or indirect parent or such other Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the Equity Interests of Landlord or its direct or indirect parent ordinarily entitled to vote in an election of directors of Landlord or its direct or indirect parent outstanding immediately prior to such transaction constitute or are converted into or exchanged into or exchanged for a majority (determined by voting power in an election of directors) of the outstanding Equity Interests ordinarily entitled to vote in an election of directors of such surviving or transferee Person (immediately after giving effect to such transaction). Notwithstanding the foregoing, no acquisition of shares of MGM REIT or any direct or indirect owner thereof in one or multiple trades on a nationally recognized stock exchange, and no sale or other transfer of direct or indirect Equity Interests in Landlord by Tenant’s Parent or any Subsidiary of Tenant’s Parent (other than MGM REIT and its Subsidiaries), shall result in a Landlord Change of Control.

Landlord FMV Acceptance Notice : As defined in Section 10.3(b) .

Landlord FMV Notice : As defined in Section 10.3(b) .

Landlord Representatives : As defined in Section 23.4 .

Landlord Tax Returns : As defined in Section 4.1(b) .

Lease Year : The first Lease Year shall be the period commencing on the Commencement Date and ending on March 31, 2017, and each subsequent Lease Year shall be each period of twelve (12) full calendar months from April 1 until the following March 31.

Leased Improvements : As defined in Section 1.1(b) .

Leased Property : As defined in Section 1.1 .

Leased Property Rent Adjustment Event : As defined in Section 14.6 .

Leasehold Estate : As defined in Section 17.1(a) .

Legal Requirements : All applicable federal, state, county, municipal and other governmental statutes, laws, rules, policies, guidance, codes, orders, regulations, ordinances, permits, licenses, covenants, conditions, restrictions, judgments, decrees and injunctions (including common law, Gaming Regulations and Environmental Laws) affecting any of the Leased Property, Tenant’s Property or Capital Improvements or the construction, use or alteration thereof, whether now or hereafter enacted and in force, including any which may (i) require repairs, modifications or alterations in or to the Leased Property and Tenant’s Property, (ii) in any way adversely affect the use and enjoyment thereof, or (iii) regulate the transport, handling, use, storage or disposal or require the cleanup or other treatment of any Hazardous Substance.

Lien : As defined in Section 11.1 .

 

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Liquor Authority : As defined in Section 41.13(a) .

Liquor Laws : As defined in Section 41.13(a) .

Master Contribution Agreement: As defined in the Recitals.

Master Lease : As defined in the preamble.

Material Indebtedness: Any Indebtedness of the type referenced in clauses (a) or (b) of the definition of Indebtedness of Tenant or the Operating Subtenants the outstanding principal amount of which is in excess of Two Hundred Fifty Million Dollars ($250,000,000).

MGM REIT : As defined in the Recitals.

Net Income : With respect to any fiscal period and with respect to any Person, the net income (or net loss) of that Person from continuing operations for that period, determined in accordance with GAAP, consistently applied.

Net Revenue : With respect to any fiscal period, the net revenue derived from the Facilities by Tenant or its Affiliates (without duplication) for that period, determined in accordance with GAAP, consistently applied, adjusted as necessary such that any Rent will constitute “rents from real property” within the meaning of Section 856(d) of the Code and Treasury Regulation Section 1.856-4). For the avoidance of doubt, Net Revenues will not be reduced by any expenses whatsoever, except that in Tenant’s sole discretion, Net Revenues may, but shall not be required to, be reduced by any component thereof representing expense reimbursements by third parties at no profit to Tenant or its Affiliates or subtenants. Notwithstanding anything to the contrary contained in this definition, Net Revenues shall not include any amount received in respect of the Identified Subleases.

New Lease : As defined in Section 17.1(f) .

Notice : A notice given in accordance with Article XXXV .

Notice of Termination: As defined in Section 17.1(f) .

NRS : As defined in Section 41.14 .

OFAC : As defined in Section 39.1 .

Officer’s Certificate : A certificate of Tenant or Landlord, as the case may be, signed by an officer of such party authorized to so sign by resolution of its board of directors or by its sole member or by the terms of its by-laws or operating agreement, as applicable.

Operating Partnership : MGM Growth Properties Operating Partnership LP.

Operating Partnership’s Limited Partnership Agreement : That certain Agreement of Limited Partnership of Operating Partnership dated as of the date hereof by and among MGM

 

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Growth Properties OP GP LLC, a Delaware limited liability company, MGM REIT and Tenant’s Parent.

Operating Subleases : As defined in the Recitals.

Operating Subtenant : Each of the Persons listed as an Operating Subtenant in Exhibit A together with any other Person that is an Affiliate of Tenant to whom all or any portion of a Facility is sublet by Tenant pursuant to an Operating Sublease.

Overdue Rate : On any date, a rate equal to two (2) percentage points above the Prime Rate, but in no event greater than the maximum rate then permitted under Legal Requirements.

Parent Company : With respect to any Person in question, any other Person (other than an Investment Fund) (x) as to which such Person in question is a Subsidiary; and (y) which other Person is not a Subsidiary of any other Person (other than an Investment Fund , which shall be deemed not to have any Parent Company and, in the case of a Discretionary Transferee that is an Investment Fund, therefore shall not be required to provide a Parent Guaranty pursuant to Section 22.2 , if applicable).

Payment Date : Any due date for the payment of the installments of Rent or any other sums payable under this Master Lease.

Percentage Rent : An annual amount equal to Fifty-Five Million Dollars ($55,000,000) per Lease Year; provided, however, that the Percentage Rent for all Facilities shall be reset each Percentage Rent Reset Date to a fixed annual amount until the next Percentage Rent Reset Date equal to one and four tenths of a percent (1.4%) of the average annual Net Revenues of all the Facilities then subject to this Master Lease for the trailing five calendar year period (i.e., January 1, 2017 through December 31, 2021, January 1, 2022 through December 31, 2026, January 1, 2027 through December 31, 2031, January 1, 2032 through December 31, 2036, and January 1, 2037 through December 31, 2041). For purposes of the preceding sentence, in the case of (i) any Leased Property Rent Adjustment Event, the “average annual Net Revenues” shall be calculated as if such Leased Property Rent Adjustment Event occurred on the first day of such trailing five-year period, (ii) any Development Facility added to this Master Lease pursuant to Section 7.4 , “average annual Net Revenue” with respect to such Development Facility shall be based on the trailing 12 month period of operations (which may include periods prior to such Development Facility’s inclusion as a Leased Property), (iii) any Facility that becomes a Removal Facility or is otherwise removed from this Master Lease in accordance herewith, the calculation of the next occurring Percentage Rent reset shall not include any revenue generated by any such removed Facility, and (iv) any Facility that is not in operation pursuant to either Section 7.2(d) or Section 14.3 , the next occurring Percentage Rent reset (and any reset thereafter, if applicable) shall be calculated as provided in such Section 7.2(d) or Section 14.3 , respectively. Percentage Rent shall be subject to further adjustment as and to the extent provided in Section 14.6.

Percentage Rent Reset Date : Each of April 1, 2022, April 1, 2027, April 1, 2032, April 1, 2037, April 1, 2042.

 

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Permitted Capital Improvements : As defined in Section 10.1(a) .

Permitted Encumbrance :

(i)        inchoate Liens incident to construction on or maintenance of Property; or Liens incident to construction on or maintenance of Property now or hereafter filed of record for which adequate reserves have been established in accordance with GAAP (or deposits made pursuant to applicable law) and which are being contested in good faith by appropriate proceedings in accordance with Article XII and have not proceeded to judgment, provided, that, by reason of nonpayment of the obligations secured by such Liens, no such Property is subject to a material risk of loss or forfeiture;

(ii)        Liens for taxes and assessments on Property which are not yet past due; or Liens for taxes and assessments on Property for which adequate reserves have been set aside and are being contested in good faith by appropriate proceedings in accordance with Article XII and have not proceeded to judgment, provided, that, by reason of nonpayment of the obligations secured by such Liens, no such Property is subject to a material risk of loss or forfeiture;

(iii)        minor defects and irregularities in title to any Property which individually or in the aggregate do not materially impair or burden the fair market value or use of the Property for the purposes for which it is or may reasonably be expected to be held;

(iv)        easements, exceptions, reservations, or other agreements for the purpose of pipelines, conduits, cables, wire communication lines, power lines and substations, streets, trails, walkways, drainage, irrigation, water, and sewerage purposes, dikes, canals, ditches, the removal of oil, gas, coal, or other minerals, and other like purposes affecting Property, or facilities or equipment, which individually or in the aggregate do not materially burden or impair the fair market value or use of such Property for the purposes for which it is or may reasonably be expected to be held;

(v)        easements, exceptions, reservations, or other agreements for the purpose of facilitating the joint or common use of Property in or adjacent to a shopping center, utility company, public facility or other projects affecting Property which individually or in the aggregate do not materially burden or impair the fair market value or use of such Property for the purposes for which it is or may reasonably be expected to be held;

(vi)        rights reserved to or vested in any governmental authority to control or regulate, or obligations or duties to any governmental authority with respect to, the use of any Property;

(vii)      rights reserved to or vested in any governmental authority to control or regulate, or obligations or duties to any governmental authority with respect to, any right, power, franchise, grant, license, or permit;

(viii)     present or future zoning laws and ordinances or other laws and ordinances restricting the occupancy, use, or enjoyment of Property;

 

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(ix)        statutory Liens, other than those described in clauses (i) or (ii)  above, arising in the ordinary course of business with respect to obligations which are not delinquent or are being contested in good faith in accordance with Article XII , provided, that, if delinquent, adequate reserves have been set aside with respect thereto and, by reason of nonpayment, no Property is subject to a material risk of loss or forfeiture;

(x)        covenants, conditions, and restrictions affecting the use of Property which individually or in the aggregate do not materially impair or burden the fair market value or use of the Property for the purposes for which it is or may reasonably be expected to be held;

(xi)        rights of tenants under leases and rental agreements covering Property entered into in the ordinary course of business of the Person owning such Property;

(xii)      Liens consisting of pledges or deposits to secure obligations under workers’ compensation laws or similar legislation, including Liens of judgments thereunder which are not currently dischargeable;

(xiii)     Liens consisting of pledges or deposits of Property to secure performance in connection with operating leases made in the ordinary course of business to which Tenant or its Subsidiaries are a party as lessee, provided, the aggregate value of all such pledges and deposits in connection with any such lease does not at any time exceed twenty percent (20%) of the annual fixed rentals payable under such lease;

(xiv)     Liens consisting of deposits of Property to secure bids made with respect to, or performance of, contracts (other than contracts creating or evidencing an extension of credit to the depositor);

(xv)     Liens consisting of any right of offset, or statutory bankers’ lien, on bank deposit accounts maintained in the ordinary course of business so long as such bank deposit accounts are not established or maintained for the purpose of providing such right of offset or bankers’ lien;

(xvi)    Liens consisting of deposits of Property to secure statutory obligations of Tenant or any of its Subsidiaries;

(xvii)   Liens consisting of deposits of Property to secure (or in lieu of) surety, appeal or customs bonds in proceedings to which Tenant or any of its Subsidiaries is a party;

(xviii)  Liens created by or resulting from any litigation or legal proceeding involving Tenant or its Subsidiaries in the ordinary course of its business which is currently being contested in good faith by appropriate proceedings in accordance with Article XII , provided, that adequate reserves have been set aside by Tenant or the relevant Subsidiary and no material Property is subject to a material risk of loss or forfeiture;

(xix)    non-consensual Liens incurred in the ordinary course of business but not in connection with an extension of credit, which do not in the aggregate, when taken together with all other Liens, materially impair the value or use of the Property of Tenant and its Subsidiaries, taken as a whole;

 

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(xx)        Liens arising under applicable Gaming Regulations;

(xxi)       Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by Tenant or its Subsidiaries in the ordinary course of business;

(xxii)     Liens arising from precautionary UCC financing statements filings regarding operating leases or consignment of goods entered into in the ordinary course of business; and

(xxiii)    Liens on cash and cash equivalents deposited to discharge, redeem or defease Indebtedness.

Permitted Leasehold Mortgage : A document creating or evidencing an encumbrance on Tenant’s leasehold interest (or a subtenant’s subleasehold interest) in the Leased Property, granted to or for the benefit of a Permitted Leasehold Mortgagee as security for the obligations under a Debt Agreement.

Permitted Leasehold Mortgagee : The lender or agent or trustee or similar representative on behalf of one or more lenders or noteholders or other investors under a Debt Agreement, in each case as and to the extent such Person has the power to act on behalf of all lenders under such Debt Agreement pursuant to the terms thereof; provided, such lender, agent or trustee or similar representative (but not necessarily the lenders, noteholders or other investors which it represents) is a banking institution in the business of generally acting as a lender, agent or trustee or similar representative (in each case, on behalf of a group of lenders) under debt agreements or instruments similar to the Debt Agreement.

Permitted Leasehold Mortgagee Designee : An entity designated by a Permitted Leasehold Mortgagee and acting for the benefit of the Permitted Leasehold Mortgagee, or the lenders, noteholders or investors represented by the Permitted Leasehold Mortgagee.

Permitted Leasehold Mortgagee Foreclosing Party : A Permitted Leasehold Mortgagee or Permitted Leasehold Mortgagee Designee that forecloses on this Master Lease and assumes this Master Lease or a Subsidiary of a Permitted Leasehold Mortgagee or Permitted Leasehold Mortgagee Designee that assumes this Master Lease in connection with a foreclosure on this Master Lease by a Permitted Leasehold Mortgagee.

Person or person : Any individual, corporation, limited liability company, partnership, joint venture, association, joint stock company, trust, unincorporated organization, government or any agency or political subdivision thereof or any other form of entity.

Primary Intended Use : Hospitality, entertainment, entertainment venues, gaming and/or pari-mutuel use generally consistent with prevailing hospitality, entertainment or gaming industry use at any time, together with all ancillary or complementary uses consistent with such use and operations (including hotels, resorts, convention centers, retail facilities, restaurants, clubs, bars, etc.), together with any other uses in effect on the date hereof and together with any other uses otherwise generally consistent with uses of property in the immediate vicinity of the Facilities.

 

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Prime Rate : On any date, a rate equal to the annual rate on such date publicly announced by JPMorgan Chase Bank, N.A. (provided, that if JPMorgan Chase Bank, N.A. ceases to publish such rate, the Prime Rate shall be determined according to the Prime Rate of another nationally known money center bank reasonably selected by Landlord), to be its prime rate for ninety (90)-day unsecured loans to its corporate borrowers of the highest credit standing, but in no event greater than the maximum rate then permitted under applicable law.

Proceeding : As defined in Section 23.1(b)(iv) .

Prohibited Persons : As defined in Section 39.1 .

Property : any right, title or interest in or to property or assets of any kind whatsoever, whether real, Personal (as defined in the UCC) or mixed and whether tangible or intangible and including all contract rights, income or revenue rights, real property interests, trademarks, trade names, equipment and proceeds of the foregoing and, with respect to any Person, equity interests or other ownership interests of any other Person owned by the first Person.

Registration Rights Agreement : That certain Registration Rights Agreement, dated as of the date hereof, by and among MGM REIT, Operating Partnership and certain other parties thereto.

REIT Class A Share : Shall have the meaning given to such term in the Operating Partnership’s Limited Partnership Agreement.

Related Persons : With respect to a party, such party’s Affiliates and Subsidiaries and the directors, officers, employees, agents, partners, managers, members, advisors and controlling persons of such party and its Affiliates and Subsidiaries.

Removal Date : As defined in Section 1.5(b) .

Removal Facility: As defined in Section 1.5 .

Removal Notice: As defined in Section 1.5 .

Renewal Notice : As defined in Section 1.4 .

Renewal Term : A period for which the Term is renewed in accordance with Section 1.4 .

Rent : Collectively, the Base Rent and the Percentage Rent.

Representative : With respect to the lenders or holders under a Debt Agreement, a Person designated as agent or trustee or a Person acting in a similar capacity or as representative for such lenders or holders.

Responsible Officer : Tenant’s Parent’s chief executive officer, chief operating officer, treasurer, assistant treasurer, secretary, assistant secretary, executive vice presidents and

 

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senior vice presidents and, regardless of designation, the chief financial officer of the Tenant’s Parent, provided, that the Tenant’s Parent may designate one or more other officers as Responsible Officers.

Restricted Information : As defined in Section 23.1(c) .

Sale Offer : As defined in Section 7.4(a) .

Sale Offer Notice: As defined in Section 7.4(a) .

SEC : The United States Securities and Exchange Commission.

SEC Filing Deadline : As defined in Section 23.1(b)(i) .

SEC Reports : All quarterly and annual reports required under the Exchange Act and related rules and regulations to be filed with the SEC on Forms 10-Q and 10-K.

Securities Act : The Securities Act of 1933, as amended, or any successor statute, and the rules and regulations promulgated thereunder.

Separate Lease : As defined in Section 1.5 .

Solvent : With respect to any Person on a particular date, that on such date (a) the fair value of the property of such Person, on a going-concern basis, is greater than the total amount of liabilities (including contingent liabilities) of such Person, (b) the present fair salable value of the assets of such Person, on a going-concern basis, is not less than the amount that will be required to pay the probable liability of such Person on its debts (including contingent liabilities) as they become absolute and matured, (c) such Person has not incurred, and does not intend to, and does not believe that it will, incur, debts or liabilities beyond such Person’s ability to pay such debts and liabilities as they mature, (d) such Person is not engaged in business or a transaction, and is not about to engage in business or a transaction, for which such Person’s property would constitute an unreasonably small capital and (e) such Person is “solvent” within the meaning given that term and similar terms under applicable laws relating to fraudulent transfers and conveyances. For purposes of this definition, the amount of any contingent liability shall be computed as the amount that, in light of all the facts and circumstances existing at such time, represents the amount that can reasonably be expected to become an actual or matured liability (irrespective of whether such contingent liabilities meet the criteria for accrual under Accounting Standards Codification No. 450).

Specified Debt Agreement Default : Any event or occurrence under a Debt Agreement or Material Indebtedness that enables or permits the lenders or holders (or Representatives of such lenders or holders) to accelerate the maturity of the Indebtedness outstanding under a Debt Agreement or Material Indebtedness.

State : With respect to each Facility, the state or commonwealth in which such Facility is located.

 

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Subsidiary : As to any Person, (i) any corporation more than fifty percent (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 of determination 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 fifty percent (50%) equity interest at the time of determination. Unless otherwise qualified, all references to a “ Subsidiary ” or to “ Subsidiaries ” in this Master Lease shall refer to a Subsidiary or Subsidiaries of Tenant.

Tenant : As defined in the preamble.

Tenant Capital Improvement : A Capital Improvement constructed by or at the direction of Tenant or any applicable Operating Subtenant at a Facility.

Tenant Change of Control : (i) Any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Exchange Act, as amended from time to time, and any successor statute) other than Tenant’s Parent and its Affiliates, shall have acquired direct or indirect beneficial ownership or control of thirty-five percent (35%) or more on a fully diluted basis of the direct or indirect voting power in the Equity Interests of Tenant entitled to vote in an election of directors of Tenant or its direct or indirect parent, (ii) except as permitted or required hereunder, the direct or indirect sale by Tenant or Tenant’s Parent of all or substantially all of Tenant’s assets, whether held directly or through Subsidiaries, relating to the Facilities in one transaction or in a series of related transactions (excluding sales to Tenant or its Subsidiaries) to a Person that is not wholly owned and controlled (directly or indirectly) by Tenant’s Parent, or (iii) Tenant ceasing to be a wholly-owned and controlled Subsidiary (directly or indirectly) of Tenant’s Parent.

Tenant Competitor : A Person or Affiliate of any Person (other than an Affiliate of Tenant) which is (i) among the top 25 global gaming companies by annual revenues, (ii) any Person that has or is proposing to build, own or operate a casino resort located in the Gaming Corridor, or (iii) any Person identified in a letter of even date herewith from Tenant to Landlord, or their Affiliates; provided, that the foregoing shall not include commercial or corporate banks, pension funds, mutual funds and any other funds that are managed or controlled by a commercial or corporate banks which funds principally invest in commercial loans or debt securities and shall not apply to any holder or purchaser of only unsecured Indebtedness, provided; further, that clauses (i) and (ii) above shall not include any Person that has elected to be treated as a real estate investment trust and whose primary business activity is limited to acting as a landlord of properties under long-term triple-net leases that may include Gaming Facilities.

Tenant FMV Notice : As defined in Section 10.3(b) .

Tenant Parties : Collectively, Tenant and each of the Operating Subtenants.

Tenant Representatives: As defined in Section 23.4 .

Tenant’s Intellectual Property : As defined in Section 6.3 .

 

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Tenant’s Parent : MGM Resorts International and its successor by merger, consolidation or other transaction pursuant to which any such successor acquires all or substantially all of the assets of MGM Resorts International.

Tenant’s Portion of a Casualty Shortfall: As defined in Section 14.2(g) .

Tenant’s Property : With respect to each Facility, all assets, including the Gaming Equipment, (other than the Leased Property and property owned by a third party (other than any Affiliate of Tenant)) located at the Leased Property primarily related to or used in connection with the operation of the business conducted on or about the Leased Property, together with all replacements, modifications, additions, alterations and substitutes therefor.

Tenant’s Property FMV : As defined in Section 36.1 .

Term : As defined in Section 1.3 .

Termination Notice : As defined in Section 17.1(d) .

Test Period : With respect to any Person, for any date of determination, the period of the four (4) most recently ended consecutive fiscal quarters of such Person for which financial statements are available or are required to have been delivered hereunder.

Title Insurance Proceeds : As defined in Section 5.1 .

Treasury Regulations : The regulations promulgated under the Code, as such regulations may be amended from time to time.

UCC : Uniform Commercial Code as in effect in the State of New York ; provided, that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any collateral is governed by the Uniform Commercial Code as in effect in a jurisdiction other than the State of New York, “ UCC ” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

Unavoidable Delay : Delays due to strikes, lock-outs, inability to procure materials, power failure, acts of God, governmental restrictions, enemy action, civil commotion, fire, unavoidable casualty or other causes beyond the reasonable control of the party responsible for performing an obligation hereunder; provided, that lack of funds shall not be deemed a cause beyond the reasonable control of a party.

Unsuitable for Its Primary Intended Use : A state or condition of any Facility such that by reason of damage or destruction, or a partial Condemnation, such Facility cannot, following restoration thereof (to the extent commercially practical), be operated on a commercially practicable basis for its Primary Intended Use, taking into account, among other relevant factors, the amount of square footage and the estimated revenue affected by such damage or destruction.

 

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ARTICLE III

RENT

3.1       Rent . During the Term, Tenant will pay to Landlord the Rent and Additional Charges in lawful money of the United States of America and legal tender for the payment of public and private debts, in the manner provided in Section 3.3 . The Base Rent during any Lease Year is payable in advance in consecutive monthly installments on the fifth (5th) Business Day of each calendar month during that Lease Year and the Percentage Rent during any Lease Year for all the Facilities is payable in advance in consecutive monthly installments on the fifth (5th) Business Day of each calendar month during that Lease Year; provided, that Tenant shall be entitled to set off against a Rent payment due hereunder any rent payments made by Tenant, Tenant’s Parent or one of its respective Subsidiaries to third-party lessors (and not previously set off) under leases (or subleases) existing on the Commencement Date, which leases (or subleases) are related to any Facility subject to this Master Lease or provide access or other similar rights to such Facility, if such lease (or sublease) has not been transferred to Landlord either (i) solely because the requisite consents to transfer have not been obtained or (ii) because the rent payable under such lease is satisfied through the payment of local development taxes, fees or other amounts paid by Tenant (provided, that, in each case, Tenant shall certify to Landlord in writing on a periodic basis as reasonably requested by Landlord the applicable lease (or sublease) and third-party lessor and include reasonable detail regarding the amounts paid thereunder). Unless otherwise agreed by the parties, Rent and Additional Charges shall be prorated as to any partial months at the beginning and end of the Term. Rent payable during any Lease Year or portion thereof consisting of more or less than twelve (12) calendar months shall be prorated on a monthly basis such that the Rent for each calendar month is equal to the annual Rent divided by twelve (12).

3.2       Late Payment of Rent . Tenant hereby acknowledges that late payment by Tenant to Landlord of Rent will cause Landlord to incur costs not contemplated hereunder, the exact amount of which is presently anticipated to be extremely difficult to ascertain. Accordingly, if any installment of Rent other than Additional Charges payable to a Person other than Landlord shall not be paid within five (5) days after its due date, Tenant will pay Landlord on demand a late charge equal to the lesser of (a) two percent (2%) of the amount of such installment or (b) the maximum amount permitted by law. The parties agree that this late charge represents a fair and reasonable estimate of the costs that Landlord will incur by reason of late payment by Tenant. The parties further agree that such late charge is Rent and not interest and such assessment does not constitute a lender or borrower/creditor relationship between Landlord and Tenant. Thereafter, if any installment of Rent other than Additional Charges payable to a Person other than Landlord shall not be paid within ten (10) days after its due date, the amount unpaid, including any late charges previously accrued, shall bear interest at the Overdue Rate from the due date of such installment to the date of payment thereof, and Tenant shall pay such interest to Landlord on demand. The payment of such late charge or such interest shall not constitute waiver of, nor excuse or cure, any default under this Master Lease, nor prevent Landlord from exercising any other rights and remedies available to Landlord.

3.3       Method of Payment of Rent . Rent and Additional Charges to be paid to Landlord shall be paid by electronic funds transfer debit transactions through wire transfer of

 

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immediately available funds and shall be initiated by Tenant for settlement on or before the Payment Date; provided, however, if the Payment Date is not a Business Day, then settlement shall be made on the next succeeding day which is a Business Day. Landlord shall provide Tenant with appropriate wire transfer information in a Notice from Landlord to Tenant. If Landlord directs Tenant to pay any Rent to any party other than Landlord, Tenant shall send to Landlord, simultaneously with such payment, a copy of the transmittal letter or invoice and a check whereby such payment is made or such other evidence of payment as Landlord may reasonably require.

3.4       Net Lease . Landlord and Tenant acknowledge and agree that (i) this Master Lease is and is intended to be what is commonly referred to as a “net, net, net” or “triple net” lease, and (ii) the Rent shall be paid absolutely net to Landlord, so that this Master Lease shall yield to Landlord the full amount or benefit of the installments of Rent and Additional Charges throughout the Term with respect to each Facility, all as more fully set forth in Article IV and subject to any other provisions of this Master Lease which expressly provide for adjustment or abatement of Rent or other charges. If Landlord commences any proceedings for non-payment of Rent, Tenant will not interpose any counterclaim or cross complaint or similar pleading of any nature or description in such proceedings unless Tenant would lose or waive such claim by the failure to assert it. This shall not, however, be construed as a waiver of Tenant’s right to assert such claims in a separate action brought by Tenant. The covenants to pay Rent and other amounts hereunder are independent covenants, and Tenant shall have no right to hold back, offset or fail to pay any such amounts for default by Landlord or for any other reason whatsoever, except as provided in Section 3.1 .

3.5       Fair Market Rent . In the event that it becomes necessary to determine the Fair Market Rent of any Facility for any purpose of this Master Lease, and the parties cannot agree among themselves on such Fair Market Rent within twenty (20) days after the first request made by one of the parties to do so, then either party may notify the other of a person selected to act as appraiser (such person, and each other person selected as provided herein, an “ Appraiser ”) on its behalf. Within fifteen (15) days after receipt of any such Notice, the other party shall by notice to the first party appoint a second person as Appraiser on its behalf. The Appraisers thus appointed, each of whom must be a member of The Appraisal Institute/American Institute of Real Estate Appraisers (or any successor organization thereto) with at least ten (10) years of experience appraising properties similar to the Facilities, shall, within forty-five (45) days after the date of the notice appointing the first appraiser, proceed to appraise the applicable Facility to determine the Fair Market Rent thereof as of the relevant date; provided , that if one Appraiser shall have been so appointed, or if two Appraisers shall have been so appointed but only one such Appraiser shall have made such determination within fifty (50) days after the making of the initial appointment, then the determination of such Appraiser shall be final and binding upon the parties. If two (2) Appraisers shall have been appointed and shall have made their determinations within the respective requisite periods set forth above and if the difference between the amounts so determined shall not exceed ten percent (10%) of the lesser of such amounts, then the Fair Market Rent shall be an amount equal to fifty percent (50%) of the sum of the amounts so determined. If the difference between the amounts so determined shall exceed ten percent (10%) of the lesser of such amounts, either party may request the appointment of Experts pursuant to Article XXXIV.

 

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ARTICLE IV

IMPOSITIONS

4.1       Impositions . (a) Subject to Article XII relating to permitted contests, Tenant shall pay, or cause to be paid, all Impositions before any fine, penalty, interest or cost may be added for non-payment. Tenant shall make such payments directly to the taxing authorities where feasible, and, upon request of Landlord, promptly furnish to Landlord copies of official receipts or other satisfactory proof evidencing such payments. Tenant’s obligation to pay Impositions shall be absolutely fixed upon the date such Impositions become a lien upon the Leased Property or any part thereof subject to Article XII . If any Imposition may, at the option of the taxpayer, lawfully be paid in installments, whether or not interest shall accrue on the unpaid balance of such Imposition, Tenant may pay the same, and any accrued interest on the unpaid balance of such Imposition, in installments as the same respectively become due and before any fine, penalty, premium, further interest or cost may be added thereto.

(b)         Landlord or MGM REIT shall prepare and file all tax returns and reports as may be required by Legal Requirements with respect to Landlord’s net income, gross receipts, franchise taxes and taxes on its capital stock and any other returns required to be filed by or in the name of Landlord (the “ Landlord Tax Returns ”), and Tenant or Tenant’s Parent shall prepare and file all other tax returns and reports as may be required by Legal Requirements with respect to or relating to the Leased Property (including all Capital Improvements), and Tenant’s Property.

(c)         Any refund due from any taxing authority in respect of any Imposition paid by or on behalf of Tenant shall be paid over to or retained by Tenant.

(d)         Landlord and Tenant shall, upon request of the other, provide such data as is maintained by the party to whom the request is made with respect to the Leased Property as may be necessary to prepare any required returns and reports. If any property covered by this Master Lease is classified as personal property for tax purposes, Tenant shall file all personal property tax returns in such jurisdictions where it must legally so file. Landlord, to the extent it possesses the same, and Tenant, to the extent it or any Operating Subtenant possesses the same, shall provide the other party, upon request, with cost and depreciation records necessary for filing returns for any property so classified as personal property. Where Landlord is legally required to file personal property tax returns, Tenant shall be provided with copies of assessment notices indicating a value in excess of the reported value in sufficient time for Tenant to file a protest.

(e)         Billings for reimbursement by Tenant to Landlord of personal property or real property taxes and any taxes due under Landlord Tax Returns, if and to the extent Tenant is responsible for such taxes under the terms of this Section 4.1 , shall be accompanied by copies of a bill therefor and payments thereof which identify the personal property or real property or other tax obligations of Landlord with respect to which such payments are made.

 

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(f)         Impositions imposed or assessed in respect of the tax-fiscal period during which the Term terminates shall be adjusted and prorated between Landlord and Tenant, whether or not such Imposition is imposed or assessed before or after such termination, and Tenant’s obligation to pay its prorated share thereof in respect of a tax-fiscal period during the Term shall survive such termination. Landlord will not voluntarily enter into agreements that will result in additional Impositions without Tenant’s consent, which shall not be unreasonably withheld (it being understood that it shall not be reasonable to withhold consent to customary additional Impositions that other property owners of properties similar to the Leased Property customarily consent to in the ordinary course of business); provided, Tenant is given reasonable opportunity to participate in the process leading to such agreement.

4.2       Utilities and other Matters . Tenant shall pay or cause to be paid all charges for electricity, power, gas, oil, water and other utilities used in the Leased Property (including all Capital Improvements). Tenant shall also pay or reimburse Landlord for all costs and expenses of any kind whatsoever which at any time with respect to the Term hereof with respect to any Facility may be imposed against Landlord by reason of any of the covenants, conditions and/or restrictions affecting the Leased Property or any portion thereof, or with respect to easements, licenses or other rights over, across or with respect to any adjacent or other property which benefits the Leased Property or any Capital Improvement, including any and all costs and expenses associated with any utility, drainage and parking easements. Landlord will not enter into agreements that will encumber the Leased Property (other than a Facility Mortgage) without Tenant’s consent, which shall not be unreasonably withheld (it being understood that it shall not be reasonable to withhold consent to encumbrances that do not adversely affect the use or future development of the Facility as a Gaming Facility or any other use consistent with the Primary Intended Use or increase Additional Charges payable under this Master Lease); provided, Tenant is given reasonable opportunity to participate in the process leading to such agreement. Tenant will not enter into agreements that will encumber the Leased Property after the expiration of the Term without Landlord’s consent, which shall not be unreasonably withheld (it being understood that it shall not be reasonable to withhold consent to encumbrances that do not adversely affect the value of the Leased Property or the Facility (other than a de minimis effect)); provided, Landlord is given reasonable opportunity to participate in the process leading to such agreement.

4.3       Impound Account . At Landlord’s option following the occurrence and during the continuation of an Event of Default (to be exercised by thirty (30) days’ Notice to Tenant); Tenant shall be required to deposit, at the time of any payment of Base Rent, an amount equal to one-twelfth of the sum of (i) Tenant’s estimated annual real and personal property taxes required pursuant to Section 4.1 hereof (as reasonably determined by Landlord), and (ii) Tenant’s estimated annual maintenance expenses and insurance premium costs pursuant to Articles IX and XIII hereof (as reasonably determined by Landlord). Such amounts shall be applied to the payment of the obligations in respect of which said amounts were deposited in such order of priority as Landlord shall reasonably determine, on or before the respective dates on which the same or any of them would become delinquent. The reasonable cost of administering such impound account shall be paid by Tenant. Nothing in this Section 4.3 shall be deemed to affect any right or remedy of Landlord hereunder.

 

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ARTICLE V

NO ABATEMENT

5.1       No Termination, Abatement, etc. Except as otherwise specifically provided in this Master Lease, Tenant shall remain bound by this Master Lease in accordance with its terms and shall not seek or be entitled to any abatement, deduction, deferment or reduction of Rent, or set-off against the Rent. Except as may be otherwise specifically provided in this Master Lease, the respective obligations of Landlord and Tenant shall not be affected by reason of (i) any damage to or destruction of the Leased Property or any portion thereof from whatever cause or any Condemnation of the Leased Property, any Capital Improvement or any portion thereof; (ii) other than as a result of Landlord’s willful misconduct or gross negligence, the lawful or unlawful prohibition of, or restriction upon, Tenant’s use of the Leased Property, any Capital Improvement or any portion thereof, the interference with such use by any Person or by reason of eviction by paramount title; (iii) any claim that Tenant has or might have against Landlord by reason of any default or breach of any warranty by Landlord hereunder or under any other agreement between Landlord and Tenant or to which Landlord and Tenant are parties; (iv) any bankruptcy, insolvency, reorganization, consolidation, readjustment, liquidation, dissolution, winding up or other proceedings affecting Landlord or any assignee or transferee of Landlord; or (v) for any other cause, whether similar or dissimilar to any of the foregoing, other than a discharge of Tenant from any such obligations as a matter of law. Tenant hereby specifically waives all rights arising from any occurrence whatsoever which may now or hereafter be conferred upon it by law (a) to modify, surrender or terminate this Master Lease or quit or surrender the Leased Property or any portion thereof, or (b) which may entitle Tenant to any abatement, reduction, suspension or deferment of the Rent or other sums payable by Tenant hereunder except in each case as may be otherwise specifically provided in this Master Lease. Notwithstanding the foregoing, nothing in this Article V shall preclude Tenant from bringing a separate action against Landlord for any matter described in the foregoing clauses (ii), (iii) or (v) and Tenant is not waiving other rights and remedies not expressly waived herein. The obligations of Landlord and Tenant hereunder shall be separate and independent covenants and agreements and the Rent and all other sums payable by Tenant hereunder shall continue to be payable in all events unless the obligations to pay the same shall be terminated pursuant to the express provisions of this Master Lease or by termination of this Master Lease as to all or any portion of the Leased Property other than by reason of an Event of Default. Tenant’s agreement that, except as may be otherwise specifically provided in this Master Lease, any eviction by paramount title as described in item (ii) above shall not affect Tenant’s obligations under this Master Lease, shall not in any way discharge or diminish any obligation of any insurer under any policy of title or other insurance and, to the extent the recovery thereof is not necessary to compensate Landlord for any damages incurred by any such eviction, Tenant shall be entitled to a credit for any sums recovered by Landlord under any such policy of title or other insurance up to the maximum amount paid by Tenant to Landlord under this Section 5.1 , and Landlord, upon request by Tenant, shall assign Landlord’s rights under such policies to Tenant; provided, that such assignment does not adversely affect Landlord’s rights under any such policy and provided, further, that Tenant shall indemnify, defend, protect and save Landlord harmless from and against any liability, cost or expense of any kind that may be imposed upon Landlord in connection with any such assignment except to the extent such liability, cost or expense arises from the gross negligence or willful misconduct of Landlord. In furtherance of the foregoing, in

 

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the event that Landlord receives proceeds (“ Title Insurance Proceeds ”) from any policy of title or similar insurance maintained by Landlord, any such Title Insurance Proceeds shall be shared between Landlord and Tenant as follows. Tenant shall be entitled to the portion of such Title Insurance Proceeds that is attributable to the damage to the leasehold estate incurred by Tenant during the Term of this Master Lease (assuming that all Renewal Terms are exercised by Tenant) and Landlord shall be entitled to the portion of such Title Insurance Proceeds that is attributable to the damage to the residual estate remaining after the expiration of the Term (assuming that all Renewal Terms are exercised) provided that, if Tenant subsequently does not exercise one or more Renewal Terms, Tenant shall pay to Landlord the portion of such Title Insurance Proceeds received by or paid to Tenant pursuant to this Section 5.1 that is allocable to the Renewal Terms that are not exercised. In the event that Landlord and Tenant are unable, within thirty (30) days of receipt of any such Title Insurance Proceeds, to agree on the allocation between Landlord and Tenant of such Title Insurance Proceeds, either Landlord or Tenant may request that such allocation be determined by an Expert in accordance with Section 34.1 . Landlord shall pay any amount owing pursuant to this Section 5.1 to Tenant within thirty (30) days after agreement upon, or determination by the Expert of, such amount.

ARTICLE VI

OWNERSHIP OF LEASED PROPERTY

6.1       Ownership of the Leased Property . (a) Landlord and Tenant acknowledge and agree that they have executed and delivered this Master Lease with the understanding that (i) the Leased Property (including any Tenant Capital Improvements) is the property of Landlord, (ii) Tenant has only the right to the possession and use of the Leased Property upon the terms and conditions of this Master Lease, (iii) this Master Lease is a “true lease,” is not a financing lease, capital lease, mortgage, equitable mortgage, deed of trust, trust agreement, security agreement or other financing or trust arrangement, and the economic realities of this Master Lease are those of a true lease, (iv) the business relationship created by this Master Lease and any related documents is and at all times shall remain that of landlord and tenant, (v) this Master Lease has been entered into by each party in reliance upon the mutual covenants, conditions and agreements contained herein, and (vi) none of the agreements contained herein is intended, nor shall the same be deemed or construed, to create a partnership between Landlord and Tenant, to make them joint venturers, to make Tenant an agent, legal representative, partner, subsidiary or employee of Landlord, or to make Landlord in any way responsible for the debts, obligations or losses of Tenant.

(b)         Each of the parties hereto covenants and agrees, subject to Section 6.1(c) , not to (i) file any income tax return or other associated documents; (ii) file any other document with or submit any document to any governmental body or authority; (iii) enter into any written contractual arrangement with any Person; or (iv) release any financial statements of Tenant, in each case that takes a position other than that this Master Lease is a “true lease” with Landlord as owner of the Leased Property and Tenant as the tenant of the Leased Property, including (x) treating Landlord as the owner of such Leased Property eligible to claim depreciation deductions under Sections 167 or 168 of the Code with respect to such Leased Property (except as otherwise provided in Section 11.1(b) ), (y) Tenant reporting its Rent

 

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payments as rent expense under Section 162 of the Code, and (z) Landlord reporting the Rent payments as rental income under Section 61 of the Code.

(c)         If Tenant should reasonably conclude that GAAP or the SEC require treatment different from that set forth in Section 6.1(b) for applicable non-tax purposes, then (x) Tenant shall promptly give prior Notice to Landlord, accompanied by a written statement that references the applicable pronouncement that controls such treatment and contains a brief description and/or analysis that sets forth in reasonable detail the basis upon which Tenant reached such conclusion, and (y) notwithstanding Section 6.1(b) , Tenant may comply with such requirements.

(d)         The Rent is the fair market rent for the use of the Leased Property and was agreed to by Landlord and Tenant on that basis, and the execution and delivery of, and the performance by Tenant of its obligations under, this Master Lease does not constitute a transfer of all or any part of the Leased Property.

(e)         Tenant waives any claim or defense based upon the characterization of this Master Lease as anything other than a true lease and as a master lease of all of the Leased Property. Tenant stipulates and agrees (1) not to challenge the validity, enforceability or characterization of the lease of the Leased Property as a true lease and/or as a single, unseverable instrument pertaining to the lease of all, but not less than all, of the Leased Property, and (2) not to assert or take or omit to take any action inconsistent with the agreements and understandings set forth in Section 3.4 or this Section 6.1 .

6.2       Tenant’s Property . Tenant and its Subsidiaries may sell, transfer, convey or otherwise dispose of Tenant’s Property in their discretion and Landlord shall have no rights to such Tenant’s Property. Subject to Section 36.1 , Tenant shall remove all of Tenant’s Property from the Leased Premises at the end of the Term. Subject to Section 36.1 , any Tenant’s Property left on the Leased Property at the end of the Term whose ownership was not transferred to a successor tenant or landlord shall be deemed abandoned by Tenant and shall become the property of Landlord. Notwithstanding anything in the foregoing to the contrary, any transfer, conveyance or other disposition by Landlord or Tenant of any Gaming Equipment will be subject to the approval, to the extent required, of any applicable Gaming Authority.

6.3       Tenant’s Intellectual Property . Subject to the terms of the Intellectual Property License Agreement, (a) Landlord and Tenant acknowledge and agree that all trademarks, trade names and trade dress used in connection with the Leased Property and all other forms of Tenant’s intellectual property (collectively, “ Tenant’s Intellectual Property ”) shall be the sole and exclusive property of Tenant, (b) Tenant and its Subsidiaries may sell, transfer, convey or otherwise dispose of, modify, use or discontinue use of Tenant’s Intellectual Property in their sole discretion, (c) Landlord shall have no rights in or to Tenant’s Intellectual Property, (d) Landlord shall not claim any rights in or to, or challenge, contest or otherwise interfere with Tenant’s sole and exclusive ownership of, Tenant’s Intellectual Property and (e) Tenant may remove or otherwise dispose of Tenant’s Intellectual Property from the Leased Property at the end of the Term, or may modify the Leased Property at the end of the Term such that Landlord’s or any successor tenant’s use of the Leased Property does not infringe upon Tenant’s ownership

 

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of Tenant’s Intellectual Property. For the avoidance of doubt, no Tenant’s Intellectual Property shall be included in the provisions of Section 36.1 .

ARTICLE VII

CONDITION AND USE OF LEASED PROPERTY

7.1       Condition of the Leased Property . Tenant acknowledges receipt and delivery of possession of the Leased Property and confirms that Tenant has examined and otherwise has knowledge of the condition of the Leased Property prior to the execution and delivery of this Master Lease and has found the same to be in good order and repair and, to the best of Tenant’s knowledge, free from Hazardous Substances not in compliance with Legal Requirements and satisfactory for its purposes hereunder. Regardless, however, of any examination or inspection made by Tenant and whether or not any patent or latent defect or condition was revealed or discovered thereby, Tenant is leasing the Leased Property “as is” in its present condition. Tenant waives any claim or action against Landlord in respect of the condition of the Leased Property including any defects or adverse conditions not discovered or otherwise known by Tenant as of the Commencement Date. LANDLORD MAKES NO WARRANTY OR REPRESENTATION, EXPRESS OR IMPLIED, IN RESPECT OF THE LEASED PROPERTY OR ANY PART THEREOF, EITHER AS TO ITS FITNESS FOR USE, DESIGN OR CONDITION FOR ANY PARTICULAR USE OR PURPOSE OR OTHERWISE, OR AS TO THE NATURE OR QUALITY OF THE MATERIAL OR WORKMANSHIP THEREIN, OR THE EXISTENCE OF ANY HAZARDOUS SUBSTANCE, IT BEING AGREED THAT ALL SUCH RISKS, LATENT OR PATENT, ARE TO BE BORNE SOLELY BY TENANT INCLUDING ALL RESPONSIBILITY AND LIABILITY FOR ANY ENVIRONMENTAL REMEDIATION AND COMPLIANCE WITH ALL ENVIRONMENTAL LAWS.

7.2       Use of the Leased Property . (a) Tenant shall use or cause to be used the Leased Property and the improvements thereon of each Facility for its Primary Intended Use. Tenant shall not use or permit the use of the Leased Property or any portion thereof or any Capital Improvement thereto for any other use without the prior written consent of Landlord, which consent Landlord may not unreasonably withhold, condition or delay. Landlord acknowledges that operation of each Gaming Facility for its Primary Intended Use generally requires a Gaming License under applicable Gaming Regulations and that without such a license neither Landlord nor any Affiliate of Landlord may operate, control or participate in the conduct of a Gaming Facility.

(b)         Tenant shall not commit or suffer to be committed any waste on the Leased Property (including any Capital Improvement thereto) or cause or permit any nuisance thereon or to, except as required by law, take or suffer any action or condition that will diminish the ability of the Leased Premises to be used as a Gaming Facility (except in connection with any use, or change of use, permitted pursuant to Section 7.2(a) above or in connection with a Facility (or any portion thereof) that is not and has not been operated as a Gaming Facility) after the expiration or earlier termination of the Term.

 

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(c)         Tenant shall neither suffer nor permit the Leased Property or any portion thereof to be used in such a manner as (i) would reasonably be expected to impair Landlord’s title thereto or to any portion thereof or (ii) would reasonably be expected to result in a claim of adverse use or possession, or an implied dedication of the Leased Property or any portion thereof.

(d)         Except as a result of a Casualty Event, Tenant shall continuously operate each of the Facilities for the Primary Intended Use. Notwithstanding the foregoing, Tenant in its discretion may elect to cease operations at any of the Facilities; provided, that at the time of such cessation of operations of a Facility, Adjusted Revenue to Rent Ratio, calculated on a pro forma basis as if the Facility(ies) for which operations are to be terminated were not included in Adjusted Revenue, for the trailing twelve (12) month period is not less than 1.9:1. Notwithstanding the foregoing, Rent under this Master Lease will remain unchanged and upon the next occurring Percentage Rent reset (and any reset thereafter, if applicable), the calculation of Percentage Rent shall assume pro forma Net Revenues from any Facility which is not in operation in accordance with this paragraph (d) based on the Net Revenues of such Facility during the 12 month period immediately preceding the date on which Tenant ceases such operations.

7.3       Development Facilities .

Subject to compliance with the provisions of Section 7.4 , nothing contained in this Master Lease shall restrict Tenant’s or any Tenant’s Affiliates’ ability to develop, acquire, operate or sell any new Gaming Facilities (or any other property) which are not owned or operated by Tenant as of the date hereof and not subject to this Master Lease.

7.4       Landlord ROFO .

(a)         Landlord’s Right to Purchase Development Facilities . Tenant agrees that during the Term, neither Tenant nor any of its Affiliates shall sell either Development Facility unless Tenant shall first offer Landlord the opportunity to purchase such Development Facility to be sold and, if consistent with the Sale Offer (as defined below), include such Development Facility as a Leased Property under this Master Lease, on the terms described herein below. In the event that Tenant intends to sell any Development Facility, Tenant shall deliver a notice to Landlord (a “ Sale Offer Notice ”) indicating the price and other material terms under which Tenant would agree to sell either or both of the Development Facilities (including, if applicable, as determined by Tenant in its sole discretion, the terms under which Tenant would agree to lease such Development Facility(ies) from a purchaser)(a “ Sale Offer ”). Within thirty (30) days of Landlord’s receipt of a Sale Offer Notice, Landlord shall notify Tenant as to whether Landlord intends to offer to purchase such Development Facility(ies) and on what terms. If Landlord shall offer to purchase the Development Facility(ies) subject to the Sale Offer for at least one hundred and five percent (105%) of the purchase price contained in the Sale Offer on an all cash basis (and, if applicable, on the same rental terms and other lease terms as the Sale Offer), Tenant shall sell such Development Facility(ies) subject to the Sale Offer to Landlord for such cash price and subject to the remaining terms set forth in the Sale Offer within sixty (60) days of Landlord’s receipt of the Sale Offer Notice, or such longer period of time as may reasonably be required to the extent necessary to comply with Section 41.13 or as otherwise

 

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necessary to comply with Gaming Regulations. If Landlord shall indicate its willingness to purchase such Development Facility(ies) but shall offer less than one hundred and five percent (105%) of the purchase price stated in the Sale Offer (or shall otherwise not agree to any of the remaining material terms contained in the Sale Offer), the parties shall attempt to negotiate, in each party’s sole discretion, the terms and conditions upon which such sale would be effected. Should Landlord notify Tenant that Landlord does not intend to purchase such Development Facility(ies) subject to the Sale Offer (or should Landlord decline to notify Tenant of its affirmative response within such thirty (30) day period), or if the parties fail for any reason to reach agreement on the terms under which Landlord would acquire such Development Facility(ies) subject to the Sale Offer, in any event, within thirty (30) days after Landlord’s receipt of the Sale Office Notice, then Tenant shall have no further obligation to sell or offer to sell such Development Facility(ies) subject to the Sale Offer to Landlord and Tenant may freely sell such Development Facility(ies) subject to the Sale Offer to any third-party for no less than the purchase price contained in, and otherwise on terms not substantially more favorable to such third-party than the terms contained in, the Sale Offer. If Landlord purchases a Development Facility from Tenant and the Sale Offer or other terms agreed between Landlord and Tenant provide for Tenant to lease, from Landlord, such Development Facility, then such Development Facility shall become a Facility hereunder, and this Master Lease shall be amended, including amending the Base Rent, in accordance with such terms set forth in the Sale Offer or as otherwise agreed between Landlord and Tenant; provided that such amendments shall be consistent with the parties’ intent that this Master Lease shall be treated as a “true lease” as further described in Section 6.1(a)(iii) . In no event shall Landlord’s rights under this Section 7.4(a) be assignable to any other Person and such rights may only be exercised by Landlord.

(b)       No Other Restrictions . Notwithstanding anything to the contrary in this Section 7.4 , Landlord shall not have any right to purchase, nor shall Tenant have any obligation to make any offer to Landlord pursuant to this Section 7.4 in connection with, any Property other than the Development Facilities and in accordance with the terms of Article X ). Further, neither Landlord nor Tenant shall be restricted from participating in opportunities, including, without limitation, developing, building, purchasing or operating Gaming Facilities or any other property or asset, at any time; provided, however, that in no event shall Landlord at any time during the Term own or operate any Gaming Facility (other than holding the lessor’s interest pursuant to a triple net lease, or otherwise with the consent of Tenant, which consent Tenant may withhold in Tenant’s sole discretion).

ARTICLE VIII

COMPLIANCE WITH LAW; GROUND LEASES

8.1       Representations and Warranties . Each party represents and warrants to the other that: (i) this Master Lease and all other documents executed or to be executed by it in connection herewith have been duly authorized and shall be binding upon it; (ii) it is duly organized, validly existing and in good standing under the laws of the state of its formation and is duly authorized and qualified to perform this Master Lease within the State(s) where any portion of the Leased Property is located; and (iii) neither this Master Lease nor any other document executed or to be executed in connection herewith violates the terms of any other agreement of such party.

 

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8.2        Compliance with Legal and Insurance Requirements, etc .

(a)         Subject to Article XII regarding permitted contests, Tenant, at its expense, shall promptly (a) comply in all material respects with all Legal Requirements and Insurance Requirements regarding the use, operation, maintenance, repair and restoration of the Leased Property (including all Capital Improvements thereto) and Tenant’s Property whether or not compliance therewith may require structural changes in any of the Leased Improvements or interfere with the use and enjoyment of the Leased Property, and (b) procure, maintain and comply in all material respects with all Gaming Regulations and Gaming Licenses, and other authorizations required for the use of the Leased Property (including all Capital Improvements) and Tenant’s Property for the applicable Primary Intended Use and any other use of the Leased Property (including Capital Improvements then being made) and Tenant’s Property, and for the proper erection, installation, operation and maintenance of the Leased Property and Tenant’s Property. In an emergency which is not being reasonably addressed by Tenant or in the event of a breach by Tenant of its obligations under this Section 8.2 which is not cured within any applicable cure period, Landlord may, but shall not be obligated to, subject to all Legal Requirements and the rights of subtenants, enter upon the Leased Property and take such reasonable actions and incur such reasonable costs and expenses to effect such compliance as it reasonably deems advisable to protect its interest in the Leased Property, and Tenant shall reimburse Landlord for all such reasonable costs and expenses incurred by Landlord in connection with such actions. Tenant covenants and agrees that the Leased Property and Tenant’s Property shall not be used for any unlawful purpose. In the event that a Gaming Authority notifies Tenant or an Operating Subtenant that Tenant or such Operating Subtenant is in jeopardy of losing a Gaming License material to this Master Lease or the continued operation of a Facility, and, assuming no Event of Default has occurred and is continuing, Tenant shall be given reasonable time to address (or cause such Operating Subtenant to address) the regulatory issue, after which period (but in all events prior to an actual revocation of such Gaming License), Tenant shall take (or shall cause such Operating Subtenant to take) reasonable steps to avoid the loss of such Gaming License (subject to the provisions of Section 7.2(d) ).

(b)         Landlord shall comply with any Gaming Regulations or other regulatory requirements required of it as owner of the Facilities taking into account their Primary Intended Use (except to the extent Tenant fulfills or is required to fulfill any such requirements hereunder). In the event that a Gaming Authority notifies Landlord that it is in jeopardy of failing to comply with any such Gaming Regulation or other regulatory requirements material to the continued operation of a Facility for its Primary Intended Use, Landlord shall be given reasonable time to address the regulatory issue, after which period (but in all events prior to an actual cessation of the use of the Facility for its Primary Intended Use as a result of the failure by Landlord to comply with such regulatory requirements) Landlord shall be required to sell the Leased Property relating to such Facility to the highest bidder (and Tenant or Tenant’s Affiliate shall be entitled to be one of the bidders) who would agree to lease such Facility to Tenant on the terms set forth in this Master Lease (including rent calculated in the manner provided pursuant to Section 14.6 hereof, and in such event the provisions of Section 1.5 shall apply); provided, that if Tenant is the bidder it shall not be required to agree to lease the Facility (given that if Tenant were to be the winning bidder, it would be the owner of the fee and leasehold interests in the Facilities), but the provisions of Section 1.5 shall apply with respect the remainder of the Facilities. In the event during the period in which Landlord conducts such auction such

 

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regulatory agency notifies Landlord and Tenant that Tenant may not pay any portion of the Rent to Landlord, Tenant shall be entitled to fund such amount into an escrow account, to be released to Landlord or the party legally entitled thereto at or upon resolution of such regulatory issues and otherwise on terms reasonably satisfactory to the parties. Notwithstanding anything in the foregoing to the contrary, no transfer of Tenant’s Property used in the conduct of gaming (including the purported or attempted transfer of a Gaming License) or the operation of a Gaming Facility shall be effected or permitted without receipt of all necessary approvals and/or Gaming Licenses in accordance with applicable Gaming Regulations.

8.3       Zoning and Uses . Without the prior written consent of Landlord, Tenant may (i) initiate or support any limiting change in the permitted uses of the Leased Property (or to the extent applicable, limiting zoning reclassification of the Leased Property); (ii) seek any variance under existing land use restrictions, laws, rules or regulations (or, to the extent applicable, zoning ordinances) applicable to the Leased Property; (iii) impose or permit or suffer the imposition of any restrictive covenants, easements or encumbrances upon the Leased Property; (iv) execute or file any subdivision plat affecting the Leased Property, or institute, or permit the institution of, proceedings to alter any tax lot comprising the Leased Property; or (v) permit or suffer the Leased Property to be used by the public or any Person; provided, however, that Landlord shall have the right to approve any matter described in the preceding clauses (i)-(v) that is reasonably likely to have a material adverse effect on the Facility, such approval not to be unreasonably withheld, conditioned or delayed unless the same is reasonably likely to materially adversely affect the Primary Intended Use in which event Landlord may withhold its consent in Landlord’s sole discretion, and further; provided, that Tenant may enter into any matter described in clause (i)-(v) above if the same and any effect on the Facility is limited in duration to the Term (including all Renewal Terms) or earlier termination of this Master Lease. In addition, Landlord agrees to, at Tenant’s sole cost and expense, reasonably cooperate with Tenant and all applicable authorities in connection with the foregoing clauses (i)-(v), including the provision and execution of such documents and other information as may be requested by Tenant or such authorities relating to the Leased Property and which are within Landlord’s reasonable control to obtain and provide.

8.4       Compliance with Ground Leases .

(a)       This Master Lease, to the extent affecting and solely with respect to any Ground Leased Property, is and shall be subject and subordinate to all of the terms and conditions of the Ground Leases. Tenant hereby acknowledges that Tenant has reviewed and agreed to all of the terms and conditions of the Ground Leases. Tenant hereby agrees that Tenant shall not do, or fail to do, anything that would cause any violation of the Ground Leases. Without limiting the foregoing, (i) Tenant shall pay Landlord on demand as an Additional Charge hereunder all rent required to be paid by, and other monetary obligations of, Landlord as tenant under the Ground Leases (and, at Landlord’s or Tenant’s option, Tenant shall make such payments directly to the Ground Lessors); provided, however, such Additional Charges payable by Tenant shall exclude any additional costs under the Ground Leases which are caused solely by Landlord after the date hereof without consent or fault of or omission by Tenant, (ii) to the extent Landlord is required to obtain the written consent of the lessor under any Ground Lease (a “ Ground Lessor ”) to alterations of or the subleasing of all or any portion of the Ground Leased Property pursuant to a Ground Lease, Tenant shall likewise obtain such Ground Lessor’s written

 

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consent to alterations of or the subleasing of all or any portion of the Ground Leased Property, and (iii) Tenant shall carry and maintain general liability, automobile liability, property and casualty, worker’s compensation and employer’s liability insurance in amounts and with policy provisions, coverages and certificates as required of Landlord as tenant under the Ground Leases.

(b)         In the event of cancellation or termination of a Ground Lease for any reason whatsoever whether voluntary or involuntary (by operation of law or otherwise) prior to the expiration date of this Master Lease, including extensions and renewals granted thereunder, then, at the applicable Ground Lessor’s option, Tenant shall make full and complete attornment to such Ground Lessor with respect to the obligations of Landlord to such Ground Lessor in connection with the applicable Ground Leased Property for the balance of the term of such Ground Lease (notwithstanding that this Master Lease shall have expired with respect to such Ground Leased Property as a result of the cancellation or termination of such Ground Lease). Tenant’s attornment shall be evidenced by a written agreement which shall provide that Tenant is in direct privity of contract with such Ground Lessor (i.e., that all obligations previously owed to Landlord under this Master Lease with respect to such Ground Lease or such Ground Leased Property shall be obligations owed to such Ground Lessor for the balance of the term of this Master Lease, notwithstanding that this Master Lease shall have expired with respect to such Ground Leased Property as a result of the cancellation or termination of such Ground Lease) and which shall otherwise be in form and substance reasonably satisfactory to such Ground Lessor. Tenant shall execute and deliver such written attornment within thirty (30) days after request by such Ground Lessor. Unless and until such time as an attornment agreement is executed by Tenant pursuant to this Section 8.4(b) , nothing contained in this Master Lease shall create, or be construed as creating, any privity of contract or privity of estate between any Ground Lessor and Tenant.

(c)         For so long as the property leased under any Ground Lease is part of the Leased Property, Landlord and Tenant each agree to cooperate and take any actions reasonably necessary to extend the term of any such Ground Lease so that such Ground Lease does not expire prior to the date that is thirty-seven years and six months after the Commencement Date. In addition, to the extent requested by Landlord, and at no cost or expense to Tenant, Tenant shall cooperate with Landlord and take any actions reasonably necessary to extend the term of such Ground Lease beyond such period set forth in the preceding sentence.

(d)         Nothing contained in this Master Lease amends, or shall be construed to amend, any provision of the Ground Leases.

ARTICLE IX

MAINTENANCE AND REPAIR

9.1       Maintenance and Repair . (a) Tenant, at its expense and without the prior consent of Landlord, shall maintain the Leased Property and every portion thereof, and all private roadways, sidewalks and curbs appurtenant to the Leased Property, and which are under Tenant’s or any subtenant’s control in reasonably good order and repair whether or not the need for such repairs occurs as a result of Tenant’s or any subtenant’s use, any prior use, the elements

 

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or the age of the Leased Property, and, with reasonable promptness, make all reasonably necessary and appropriate repairs thereto of every kind and nature, including those necessary to ensure continuing compliance with all Legal Requirements, whether interior or exterior, structural or non-structural, ordinary or extraordinary, foreseen or unforeseen or arising by reason of a condition existing prior to the Commencement Date. Tenant shall maintain Tenant’s Property as Tenant reasonably determines is necessary or desirable for conduct of the Primary Intended Use at the Facilities. Landlord acknowledges that the condition of the Facilities and the other matters described in the first sentence of this Section 9.1 on the date hereof satisfies the requirements of this Article IX .

(b)         Landlord shall not under any circumstances be required to (i) build or rebuild any improvements on the Leased Property; (ii) make any repairs, replacements, alterations, restorations or renewals of any nature to the Leased Property, whether ordinary or extraordinary, structural or non-structural, foreseen or unforeseen, or to make any expenditure whatsoever with respect thereto; or (iii) maintain the Leased Property in any way. Tenant hereby waives, to the extent permitted by law, the right to make repairs at the expense of Landlord pursuant to any law in effect at the time of the execution of this Master Lease or hereafter enacted.

(c)         Subject to the specific provisions of Section 41.14 , nothing contained in this Master Lease and no action or inaction by Landlord shall be construed as (i) constituting the consent or request of Landlord, expressed or implied, to any contractor, subcontractor, laborer, materialman or vendor to or for the performance of any labor or services or the furnishing of any materials or other property for the construction, alteration, addition, repair or demolition of or to the Leased Property or any part thereof or any Capital Improvement thereto; or (ii) giving Tenant any right, power or permission to contract for or permit the performance of any labor or services or the furnishing of any materials or other property in such fashion as would permit the making of any claim against Landlord in respect thereof or to make any agreement that may create, or in any way be the basis for, any right, title, interest, lien, claim or other encumbrance upon the estate of Landlord in the Leased Property, or any portion thereof or upon the estate of Landlord in any Capital Improvement thereto.

(d)         Tenant shall, upon the expiration or earlier termination of the Term, vacate and surrender the Leased Property (including all Capital Improvements, subject to the provisions of Article X ), in each case with respect to such Facility, to Landlord in the condition in which such Leased Property was originally received from Landlord and Capital Improvements were originally introduced to such Facility, except as repaired, rebuilt, restored, altered or added to as permitted or required by the provisions of this Master Lease and except for ordinary wear and tear, subject to casualty and Condemnation as provided in Article XIV and XV .

(e)         Without limiting Tenant’s obligations to maintain the Leased Property and Tenant’s Property under this Master Lease, within sixty (60) days after the end of each calendar year (commencing with the calendar year ending December 31, 2016), Tenant shall provide Landlord with evidence satisfactory to Landlord in the reasonable exercise of Landlord’s discretion that Tenant has in such calendar year spent, with respect to the Leased Property and Tenant’s Property, an aggregate amount equal to at least one percent (1%) of the

 

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actual Net Revenue of Tenant Parties (without duplication) from the Facilities for such calendar year on installation or restoration and repair or other improvement of items, which installations, restorations and repairs and other improvements are capitalized in accordance with GAAP with an expected life of not less than three (3) years. If Tenant fails to make at least the above amount of expenditures and fails within sixty (60) days after receipt of a Notice from Landlord to either (i) cure such deficiency or (ii) obtain Landlord’s written approval, in its reasonable discretion, of a repair and maintenance program satisfactory to cure such deficiency, then the same shall be deemed a default hereunder.

9.2       Encroachments, Restrictions, Mineral Leases, etc. If any of the Leased Improvements shall, at any time, encroach upon any property, street or right-of-way, or shall violate any restrictive covenant or other agreement affecting the Leased Property, or any part thereof or any Capital Improvement thereto, or shall impair the rights of others under any easement or right-of-way to which the Leased Property is subject, or the use of the Leased Property or any Capital Improvement thereto is impaired, limited or interfered with by reason of the exercise of the right of surface entry or any other provision of a lease or reservation of any oil, gas, water or other minerals, then promptly upon the request of Landlord or any Person affected by any such encroachment, violation or impairment, each of Tenant and Landlord, subject to their right to contest the existence of any such encroachment, violation or impairment, shall protect, indemnify, save harmless and defend the other party hereto from and against fifty percent (50%) of all losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including reasonable attorneys’, consultants’ and experts’ fees and expenses) based on or arising by reason of any such encroachment, violation or impairment. In the event of an adverse final determination with respect to any such encroachment, violation or impairment, either (a) each of Tenant and Landlord shall be entitled to obtain valid and effective waivers or settlements of all claims, liabilities and damages resulting from each such encroachment, violation or impairment, whether the same shall affect Landlord or Tenant or (b) Tenant at the shared cost and expense of Tenant and Landlord on a 50-50 basis shall make such changes in the Leased Improvements, and take such other actions, as Tenant in the good faith exercise of its judgment deems reasonably practicable, to remove such encroachment or to end such violation or impairment, including, if necessary, the alteration of any of the Leased Improvements, and in any event take all such actions as may be necessary in order to be able to continue the operation of the Leased Improvements for the Primary Intended Use substantially in the manner and to the extent the Leased Improvements were operated prior to the assertion of such encroachment, violation or impairment. Tenant’s (and Landlord’s) obligations under this Section 9.2 shall be in addition to and shall in no way discharge or diminish any obligation of any insurer under any policy of title or other insurance and, to the extent the recovery thereof is not necessary to compensate Landlord and Tenant for any damages incurred by any such encroachment, violation or impairment, Tenant shall be entitled to fifty percent (50%) of any sums recovered by Landlord under any such policy of title or other insurance up to the maximum amount paid by Tenant under this Section 9.2 and Landlord, upon request by Tenant, shall assign Landlord’s rights under such policies to Tenant; provided, such assignment does not adversely affect Landlord’s rights under any such policy. Landlord agrees to use reasonable efforts to seek recovery under any policy of title or other insurance under which Landlord is an insured party for all losses, liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses (including reasonable attorneys’, consultants’ and experts’ fees and expenses) based on or arising by reason of any such encroachment, violation or impairment as set forth in this Section 9.2 ;

 

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provided, however, that in no event shall Landlord be obligated to institute any litigation, arbitration or other legal proceedings in connection therewith unless Landlord is reasonably satisfied that Tenant has the financial resources needed to fund such litigation and Tenant and Landlord have agreed upon the terms and conditions on which such funding will be made available by Tenant, including, but not limited to, the mutual approval of a litigation budget.

ARTICLE X

CAPITAL IMPROVEMENTS

10.1      Construction of Capital Improvements to the Leased Property .

(a)         Tenant and each Operating Subtenant shall, with respect to any Facility, have the right to make Capital Improvements, including, without limitation, any Capital Improvement required by Section 8.2 or 9.1(a) , without the consent of, or any notice to, Landlord if the Capital Improvement (i) does not involve the removal of any material existing structures (unless Tenant reasonably promptly proceeds to replace such removed structures with structures of at least reasonably comparable value or utility), (ii) does not have a material adverse effect on the structural integrity of any remaining Leased Improvements (other than as contemplated to be maintained or improved in connection with such Capital Improvement), (iii) is not reasonably likely to reduce the value of the Facility when completed, and (iv) is consistent with the Primary Intended Use; each of the foregoing (i)-(iv) as reasonably determined by Tenant. Any Capital Improvements described in the preceding sentence are referred to as, “ Permitted Capital Improvements ”.

(b)         If Tenant or any subtenant desires to make a Capital Improvement that is not a Permitted Capital Improvement (a “ Landlord Approved Capital Improvement ”), Tenant shall submit to Landlord in reasonable detail a general description of the proposal, the projected cost of construction and such plans and specifications, permits, licenses, contracts and other information concerning the proposal as Landlord may reasonably request. Such description shall indicate the use or uses to which such Capital Improvement will be put and the impact, if any, on current and forecasted gross revenues and operating income attributable thereto. All proposed Landlord Approved Capital Improvements shall be subject to Landlord’s review and approval, which approval shall not be unreasonably withheld, conditioned or delayed. It shall be reasonable for Landlord to condition its approval of any Capital Improvement upon any or all of the following terms and conditions:

(i)          Such construction shall be effected pursuant to detailed plans and specifications approved by Landlord, which approval shall not be unreasonably withheld, conditioned or delayed; and

(ii)         No Capital Improvement will result in the Leased Property becoming a “limited use” property for purposes of United States federal income taxes as of the date such Capital Improvement is placed in service.

 

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(iii)       All Capital Improvements will become Landlord’s property when made; provided, however, that the foregoing shall not affect the provisions of Section 11.1(b) .

10.2      Construction Requirements for Capital Improvements . Tenant’s or any subtenant’s construction of Capital Improvements shall be performed in compliance with the following requirements which shall be applicable to Permitted Capital Improvements and Landlord Approved Capital Improvements except as indicated below:

(a)         Such construction shall not be commenced until Tenant shall have procured and paid for all municipal and other governmental permits and authorizations required to be obtained prior to such commencement, including those permits and authorizations required pursuant to any Gaming Regulations, and Landlord shall join in the application for such permits or authorizations whenever such action is necessary; provided, however, that (i) any such joinder shall be at no cost or expense to Landlord; and (ii) any plans required to be filed in connection with any such application in respect of any Landlord Approved Capital Improvements shall have been so approved by Landlord;

(b)         Such construction shall not impair the structural strength of any component of the applicable Facility or overburden the electrical, water, plumbing, HVAC or other building systems of any such component in a manner that would violate applicable building codes or prudent industry practices;

(c)         During and following completion of such construction, the parking and other amenities which are located in the applicable Facility or on the Land of such Facility shall remain adequate for the operation of such Facility for its Primary Intended Use and in no event shall such parking be less than that which is required by law (including any variances with respect thereto); provided, however, that to the extent additional parking is not already a part of a Capital Improvement, Tenant may construct additional parking on the Land in accordance with Section 10.1(a) ; or Tenant may acquire off-site parking to serve such Facility as long as such parking shall be reasonably proximate to, and dedicated to, or otherwise made available to serve, such Facility;

(d)         All work done in connection with such construction shall be done as soon as reasonably practicable and using materials and resulting in work that is at least as good product and condition as the remaining areas of the applicable Facility and in conformity with all Legal Requirements, including, without limitation, any applicable non-discrimination laws; and

(e)         Promptly following the completion of any Landlord Approved Capital Improvements only, Tenant shall deliver to Landlord “as built” drawings of such addition (or written confirmation from the relevant general contractor or architect that such Capital Improvement has been built in accordance with the plans and specifications), certified as accurate by the licensed architect or engineer selected by Tenant, and copies of any new or revised certificates of occupancy.

10.3      Tenant Capital Improvements Upon Deconsolidation . (a) Upon the occurrence of a Deconsolidation Event, Landlord shall, at the sole option of Tenant which must

 

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be exercised, if at all, within thirty (30) days after the occurrence of a Deconsolidation Event, be required to pay Tenant, an amount equal to the Deconsolidation Growth Capital Improvement Purchase Price; provided, that such payment does not result in a default under any Facility Mortgage Document or other Indebtedness of Landlord. For the avoidance of doubt, all Tenant Capital Improvements will become the property of Landlord when made and will be deemed to be part of the Leased Property at all times but are subject to the provisions of Section 11.1(b) .

(b)         No later than thirty (30) days after a Deconsolidation Event, Tenant may, in its sole discretion, deliver to Landlord a Notice (“ Tenant FMV Notice ”) indicating Tenant’s good faith determination of the Deconsolidation Growth Capital Improvement Purchase Price, including reasonable detail regarding the nature, location and cost of all Deconsolidation Growth Capital Improvements and allocating such price among the Facilities. Landlord will, within thirty (30) days after Landlord’s receipt of the Tenant FMV Notice provide a Notice to Tenant indicating either (i) that Landlord agrees with Tenant’s determination of the Deconsolidation Growth Capital Improvement Purchase Price (a “ Landlord FMV Acceptance Notice ”) or (ii) Landlord’s good faith determination of the Deconsolidation Growth Capital Improvement Purchase Price, and, if applicable, reasonable detail regarding any Capital Improvements that Landlord believes should or should not be considered Deconsolidation Growth Capital Improvements to the extent Landlord disagrees with Tenant’s determination of the same (a “ Landlord FMV Notice ”).

(c)         In the event that Landlord delivers to Tenant a Landlord FMV Notice, Landlord and Tenant will negotiate in good faith for a period of no less than thirty (30) days to agree upon the Deconsolidation Growth Capital Improvement Purchase Price. If, following such thirty (30) day period, Landlord and Tenant are unable to agree upon the Deconsolidation Growth Capital Improvement Purchase Price, Landlord and Tenant shall appoint Experts, and the Deconsolidation Growth Capital Improvement Purchase Price will be determined, in accordance with Section 34.1 .

(d)         Upon the determination of the Deconsolidation Growth Capital Improvement Purchase Price in accordance with paragraph (b) or (c) above, as applicable, (such determination, the “ Agreed Deconsolidation Growth Capital Improvement Fair Market Value ”), Landlord will, within ten (10) Business Days after the determination of the Agreed Deconsolidation Growth Capital Improvement Fair Market Value, pay to Tenant or Tenant’s designee, an amount equal to the Agreed Deconsolidation Growth Capital Improvement Fair Market Value, either by wire transfer of immediately available funds, or, if elected by MGM REIT, by delivery of freely transferable Common Units of the Operating Partnership having a value equal to the Agreed Deconsolidation Growth Capital Improvement Fair Market Value, with the value of each Common Unit so delivered being assumed to have a value equal to the fair market value on the date of delivery (as determined in accordance with the Operating Partnership’s Limited Partnership Agreement) of a REIT Class A Share, and Tenant or Tenant’s designee receiving such Common Units becoming a party to, and having all rights under, the Registration Rights Agreement.

(e)         From and after the payment of the Agreed Deconsolidation Growth Capital Improvement Fair Market Value, (i) if, as of the date of a Deconsolidation Event there is less than five (5) years remaining in the then current Term, Tenant shall be deemed to have

 

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elected to exercise Tenant’s right to extend the Term for the then next occurring Renewal Term, if any (for clarification purposes, if a Deconsolidation Event occurs during the last Renewal Term, there shall be no obligation or ability for Tenant to further extend the Term, however Landlord’s obligation to pay the Agreed Deconsolidation Growth Capital Improvement Fair Market Value shall remain unaffected), and (ii) annual Base Rent with respect to the Leased Property will be increased by an amount equal to the Assumed Rate multiplied by the Agreed Deconsolidation Growth Capital Improvement Fair Market Value and, to the extent required for any purposes under this Master Lease, such increase will be allocated in proportion to the amount of the Agreed Deconsolidation Growth Capital Improvement Fair Market Value attributable to each of the Facilities as indicated in the Tenant FMV Notice.

(f)         Notwithstanding anything to the contrary set forth in this Article X , in no event shall Landlord be required to pay a Deconsolidation Growth Capital Improvement Purchase Price in excess of an amount equal to One Hundred Million Dollars ($100,000,000) which amount of One Hundred Million Dollars ($100,000,000) shall be increased by Seventy-Five Million Dollars ($75,000,000) on the first day of each Lease Year commencing at the beginning of the second Lease Year. Tenant shall provide to Landlord, within a reasonable time following each anniversary of the Commencement Date, a Notice indicating Tenant’s reasonable estimate of the cumulative amount Tenant has then expended on Deconsolidation Growth Capital Improvements. Landlord and Tenant acknowledge and agree that Tenant’s amount of cumulative Deconsolidation Growth Capital Improvements may, from time to time, exceed the limits of Landlord’s obligations to pay for Deconsolidation Growth Capital Improvements described in this clause (f), however any such excess shall not alter Landlord’s obligation with respect thereto or increase such limit, nor shall such limit in any way restrict the amount that Tenant may spend at any time with respect to any Tenant Capital Improvements.

10.4       Ownership of Tenant Capital Improvements at end of Term . Upon the expiration or earlier termination of this Master Lease, all Tenant Capital Improvements shall remain the property of Landlord, regardless of whether a Deconsolidation Event has occurred.

10.5      Funding of Tenant Capital Improvements . Landlord shall have the right, following a request from Tenant, to fund the cost of any proposed Tenant Capital Improvements on such arms-length terms and conditions as may be agreed to by Landlord and Tenant. In connection with any such funding, Landlord and Tenant may make agreed upon modifications to the Rent to reflect Landlord’s funding of the cost of such Tenant Capital Improvements.

ARTICLE XI

NO LIENS

11.1      Liens . (a) Subject to the provisions of Article XII relating to permitted contests, Tenant will not directly or indirectly create and will promptly discharge at its expense any lien, encumbrance, attachment, title retention agreement or claim (“ Lien ”) upon the Leased Property or any Capital Improvement thereto or upon the Gaming Licenses (including indirectly through a pledge of shares in the direct or indirect entity owning an interest in the Gaming Licenses except as permitted by Article XVII ) or any attachment, levy, claim or encumbrance in respect of the Rent, excluding, however, (a) this Master Lease; (b) the matters that existed as of the

 

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Commencement Date with respect to such Facility (and any renewals of such exiting matters that do not materially increase the scope of or amount secured by such Lien); (c) restrictions, liens and other encumbrances which are consented to in writing by Landlord (such consent not to be unreasonably withheld); (d) liens for Impositions which Tenant is not required to pay hereunder; (e) subleases permitted by Article XXII ; (f) liens for Impositions not yet delinquent or being contested in accordance with Article XII , provided, that no foreclosure or similar remedies with respect to such Impositions have been completed; (g) liens of mechanics, laborers, materialmen, suppliers or vendors for sums either disputed or not yet due; provided, any such liens are in the process of being contested as permitted by Article XII ; (h) any liens created by Landlord; (i) liens related to equipment leases or equipment financing for Tenant’s Property which are used or useful in Tenant’s business on the Leased Property; (j) liens granted as security for the obligations of Tenant under a Debt Agreement or completion guarantee; provided, however, in no event shall the foregoing be deemed or construed to permit Tenant to encumber its leasehold interest (or a subtenant to encumber its subleasehold interest) in the Leased Property or its direct or indirect interest (or the interest of any of its Subsidiaries or subtenants) in the Gaming Licenses (other than, in each case, to a Permitted Leasehold Mortgagee), without the prior written consent of Landlord, which consent may be granted or withheld in Landlord’s sole discretion; and provided, further, that Tenant shall be required to provide Landlord with fully executed copies of any and all Permitted Leasehold Mortgages and related principal Debt Agreements; (k) easements, rights-of-way, restrictions (including zoning restrictions), covenants, encroachments, protrusions and other similar charges or encumbrances, and minor title deficiencies on or with respect to any Leased Property, in each case whether now or hereafter in existence, not individually or in the aggregate materially interfering with the conduct of the business on the Leased Property, taken as a whole; (l) any Permitted Encumbrance, (m) licenses of patents, trademarks and other intellectual property rights granted by Tenant or any of its Subsidiaries in the ordinary course of business (n) other Liens securing Indebtedness outstanding in an aggregate principal amount of no more than Twenty-Five Million Dollars ($25,000,000) and (o) any matters which are expressly limited in duration to the Term (including any Renewal Terms) subject to earlier termination of this Master Lease. For the avoidance of doubt, the parties acknowledge and agree that Tenant has not granted any liens in favor of Landlord as security for its obligations hereunder and nothing contained herein shall be deemed or construed to prohibit the issuance of a lien on the Equity Interests in Tenant (it being agreed that any foreclosure by a lien holder on such interests in Tenant shall be subject to the restriction on Tenant Change of Control set forth in Article XXII ) or to prohibit Tenant from pledging its Accounts and other Tenant’s Property and other property of Tenant, including fixtures and personal property installed by Tenant at the Facilities, as collateral in connection with financings from equipment lenders (or to Permitted Leasehold Mortgagees); provided, that Tenant shall in no event pledge to any Person that is not a Permitted Leasehold Mortgagee hereunder any of the Gaming Licenses or other of Tenant’s Property to the extent that such Tenant’s Property cannot be removed from the Leased Property without damaging or impairing the Leased Property (other than in a de minimis manner). For the further avoidance of doubt, by way of example, Tenant shall not grant to any lender (other than a Permitted Leasehold Mortgagee) a lien on, and any and all lien holders (including a Permitted Leasehold Mortgagee) shall not have the right to remove, carpeting, internal wiring, elevators, or escalators at the Leased Property, but lien holders may have the right to remove (and Tenant shall have the right to grant a lien on) Gaming Equipment even if the removal thereof from the Leased Premises could result in de minimis damage;

 

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provided, any such damage is repaired by the lien holder or Tenant in accordance with the terms of this Master Lease.

(b)         Landlord and Tenant intend that this Master Lease be an indivisible true lease that affords the parties hereto the rights and remedies of landlord and tenant hereunder and does not represent a financing arrangement. This Master Lease is not an attempt by Landlord or Tenant to evade the operation of any aspect of the law applicable to any of the Leased Property. Except as otherwise required by applicable law or any accounting rules or regulations, Landlord and Tenant hereby acknowledge and agree that this Master Lease (i) shall be treated as an operating lease for financial accounting purposes and not as a synthetic lease, financing lease or loan, and (ii) is intended to constitute a “true lease” for all other purposes, including federal, state and local tax purposes, commercial purposes, and bankruptcy purposes and that Landlord shall be entitled to all the benefits of ownership of the Leased Property, including depreciation with respect to the Leased Property (but not with respect to any Tenant Capital Improvements, except as provided in the next sentence) for all federal, state and local tax purposes. Without prejudice to Sections 10.1(b)(iii) or 10.4 , Tenant shall be entitled to all benefits of ownership of any Tenant Capital Improvements during the Term, including depreciation for all federal, state and local tax purposes, except to the extent of any Tenant Capital Improvements that are actually paid for by Landlord (it being understood that Landlord has no right or obligation to pay for any Tenant Capital Improvements except in accordance with Section 10.3 ).

(c)         At any time and from time to time upon the request of Landlord or Tenant, and at the expense of the requesting party, Tenant or Landlord, as applicable, shall promptly execute, acknowledge and deliver such further documents and do such other acts as the requesting party may reasonably request in order to effect fully this Master Lease or to more fully perfect or renew the rights of the requesting party with respect to the Leased Property. Upon the exercise by Landlord or Tenant of any power, right, privilege or remedy pursuant to this Master Lease which requires any consent, approval, recording, qualification or authorization of any governmental authority, Tenant or Landlord, as applicable, will execute and deliver, or will cause the execution and delivery of, all applications, certifications, instruments and other documents and papers that the exercising party may be required to obtain from such other party for such consent, approval, recording, qualification or authorization.

ARTICLE XII

PERMITTED CONTESTS

12.1      Permitted Contests . Tenant, upon prior Notice to Landlord, on its own or in Landlord’s name, at Tenant’s expense, may contest, by appropriate legal proceedings conducted in good faith and with due diligence, the amount, validity or application, in whole or in part, of any licensure or certification decision (including pursuant to any Gaming Regulation), Imposition, Legal Requirement, Insurance Requirement, or Lien; provided, however, that (a) in the case of an unpaid Imposition or Lien, the commencement and continuation of such proceedings shall suspend the collection thereof from Landlord and from the Leased Property or any Capital Improvement thereto; (b) neither the Leased Property or any Capital Improvement thereto, the Rent therefrom nor any part or interest in either thereof would be in any imminent danger of being sold, forfeited, attached or lost pending the outcome of such proceedings; (c) in

 

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the case of a Legal Requirement, neither Landlord nor Tenant would be in any imminent danger of civil or criminal liability for failure to comply therewith pending the outcome of such proceedings; (d) in the case of a Legal Requirement, Imposition or Lien, Tenant shall give such reasonable security as may be required by Landlord to insure ultimate payment of the same and to prevent any sale or forfeiture of the Leased Property or any Capital Improvement thereto or the Rent by reason of such non-payment or noncompliance; (e) in the case of an Insurance Requirement, the coverage required by Article XIII shall be maintained; (f) Tenant shall keep Landlord reasonably informed as to the status of the proceedings; and (g) if such contest be finally resolved against Landlord or Tenant, Tenant shall promptly pay the amount required to be paid, together with all interest and penalties accrued thereon, or comply with the applicable Legal Requirement or Insurance Requirement. Landlord, at Tenant’s expense, shall execute and deliver to Tenant such authorizations and other documents as may reasonably be required in any such contest, and, if reasonably requested by Tenant or if Landlord so desires, Landlord shall join as a party therein. The provisions of this Article XII shall not be construed to permit Tenant to contest the payment of Rent or any other amount (other than Impositions or Additional Charges which Tenant may from time to time be required to impound with Landlord) payable by Tenant to Landlord hereunder. Tenant shall indemnify, defend, protect and save Landlord harmless from and against any liability, cost or expense of any kind that may be imposed upon Landlord in connection with any such contest and any loss resulting therefrom, except in any instance where Landlord opted to join and joined as a party in the proceeding despite Tenant’s having sent Notice to Landlord of Tenant’s preference that Landlord not join in such proceeding.

ARTICLE XIII

INSURANCE

13.1      General Insurance Requirements . During the Term, Tenant shall at all times keep the Leased Property, and all property located in or on the Leased Property, including Capital Improvements, the Fixtures and Tenant’s Property, insured with the kinds and amounts of insurance described below. Each element of insurance described in this Article XIII shall be maintained with respect to the Leased Property of each Facility and Tenant’s Property and operations thereon. Such insurance shall be written by companies permitted to conduct business in the applicable State. All policies required under this Master Lease must name Landlord as an “additional named insured.” All business interruption policies shall name Landlord as “loss payee” with respect to Rent only. Property losses shall be payable to Landlord and/or Tenant as provided in Article XIV . In addition, the policies, as appropriate, shall name as an “additional insured” and/or “loss payee” each Permitted Leasehold Mortgagee and as an “additional insured” or “loss payee” the holder of any mortgage, deed of trust or other security agreement (“ Facility Mortgagee ”) securing any indebtedness or any other Encumbrance placed on the Leased Property in accordance with the provisions of Article XXXI (“ Facility Mortgage ”) by way of a 438BFU or other standard form of mortgagee’s loss payable endorsement. Except as otherwise set forth herein, any property insurance loss adjustment settlement shall require the written consent of Landlord, Tenant, and each Facility Mortgagee (to the extent required under the applicable Facility Mortgage Documents) unless the amount of the loss net of the applicable deductible is less than Fifty Million Dollars ($50,000,000) in which event no consent shall be required. Evidence of insurance shall be deposited with Landlord and, if requested, with any

 

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Facility Mortgagee(s). The insurance policies required to be carried by Tenant hereunder shall insure against all the following risks with respect to each Facility:

(a)         Loss or damage by fire, vandalism and malicious mischief, extended coverage perils commonly known as “All Risk,” and all physical loss perils normally included in such All Risk insurance, including, but not limited to, sprinkler leakage, collapse, windstorm and terrorism in an amount not less than One Billion Dollars ($1,000,000,000) and including a building ordinance coverage endorsement, provided, that Tenant shall have the right (i) to limit maximum insurance coverage for loss or damage by earthquake (including earth movement) to a minimum amount of Four Hundred Million Dollars ($400,000,000) or as may be reasonably requested by Landlord and commercially available, and (ii) to limit maximum insurance coverage for loss or damage by windstorm (including but not limited to named windstorms) to a minimum amount of Four Hundred Million Dollars ($400,000,000) or as may be reasonably requested by Landlord and commercially available; provided, further, that in the event the premium cost of any earthquake, flood, windstorm (including named windstorm) or terrorism peril coverages are available only for a premium that is more than 2.5 times the average premium paid by Tenant (or prior operator of Facilities) over the three years preceding the date of determination for the insurance policy contemplated by this Section 13.1(a) , then Tenant shall be entitled and required to purchase the maximum amount of insurance coverage it reasonably deems most efficient and prudent to purchase for such peril and Tenant shall not be required to spend additional funds to purchase additional coverages insuring against such risks; and provided, further, that certain property coverages other than earthquake, flood and windstorm may be sub-limited as long as each sub-limit (x) is commercially reasonable and prudent as determined by Tenant and (y) to the extent that the amount of such sub-limit is less than the amount of such sub-limit in effect as of the Commencement Date, such sub-limit is approved by Landlord, such approval not to be unreasonably withheld;

(b)         Loss or damage by explosion of steam boilers, pressure vessels or similar apparatus, now or hereafter installed in each Facility, in such limits with respect to any one accident as may be reasonably requested by Landlord from time to time;

(c)         Flood (when any of the improvements comprising the Leased Property of a Facility is located in whole or in part within a designated 100-year flood plain area) in an amount not less than the greater of (i) the probable maximum loss of a 250 year event (as determined by a qualified engineer), and (ii) Two Hundred Million Dollars ($200,000,000), or such amount as may reasonably be requested by Landlord and commercially available;

(d)         Loss of rental value in an amount not less than twelve (12) months’ Rent payable hereunder or business interruption in an amount not less than twelve (12) months of income and normal operating expenses including 90-days ordinary payroll and Rent payable hereunder with an extended period of indemnity coverage of at least ninety (90) days necessitated by the occurrence of any of the hazards described in Sections 13.1(a) , 13.1(b) or 13.1(c) ;

(e)         Claims for injury to persons or property damage under a policy of commercial general liability insurance including but not limited to coverage for premises/operations, blanket contractual liability, liquor liability, special events or activities to

 

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the extent insurable, independent contractors and personal injury with limits not less than Two Hundred Fifty Million Dollars ($250,000,000) each occurrence and Two Hundred Fifty Million Dollars ($250,000,000) in the annual aggregate, provided, that such requirements may be satisfied through the purchase of a primary general liability policy and excess liability policies;

(f)         Claims for bodily injury and property damage under a policy of business automobile liability including garage and garagekeepers liability and containing provisions and endorsements in accordance with state legal requirements, with primary limits not less than One Million Dollars ($1,000,000) per accident and excess limits provided in the excess liability policies referred to above;

(g)         During such time as Tenant or any subtenant is constructing any improvements at any Facility, Tenant, at its sole cost and expense, shall carry, or cause to be carried (a) workers’ compensation insurance and employers’ liability insurance covering all persons employed in connection with the improvements in statutory limits, (b) a completed operations endorsement to the commercial general liability insurance policy referred to above, (c) builder’s risk insurance, completed value form (or its equivalent), covering all physical loss, in an amount and subject to policy conditions satisfactory to Landlord, and (d) such other insurance, in such amounts, as Landlord deems reasonably necessary to protect Landlord’s interest in the Leased Property from any act or omission of Tenant’s or such subtenant’s contractors or subcontractors; and

(h)         If any operations of Tenant or any subtenant require the use of any aircraft or watercraft that is owned, leased or chartered by Tenant or any subtenant with respect to the Leased Property, Tenant shall maintain or cause to be maintained aircraft or watercraft liability insurance, as appropriate, with limits not less than Twenty-Five Million Dollars ($25,000,000) per occurrence for bodily injury and property damage including passengers and crew.

(i)         Tenant may provide self-insured retentions for portions of the insurance contemplated under this Section 13.1 in commercially reasonable amounts, it being agreed that the amounts of the self-insured retentions in effect as of the Commencement Date are commercially reasonable. Tenant may elect to increase Tenant’s self-insured retentions subject to the approval of Landlord, such approval not to be unreasonably withheld. Upon (i) the termination of this Master Lease with respect to any Facility pursuant to Section 14.2 , (ii) the election of any Facility Mortgagee pursuant to Section 14.1 to apply any proceeds payable under any property policy of insurance in accordance with the applicable Facility Mortgage, or (iii) any proceeds payable under any property policy of insurance being retained by Landlord pursuant to Section 14.2(f) , Tenant shall pay to Landlord the amount of any self-insured retentions.

13.2     Additional Insurance . In addition to the insurance described above, Tenant shall at all times maintain adequate workers’ compensation coverage and any other coverage required by Legal Requirements for all Persons employed by Tenant or any Operating Subtenant on the Leased Property in accordance with Legal Requirements.

13.3     Waiver of Subrogation . All insurance policies carried by either party covering the Leased Property or Tenant’s Property, including, without limitation, contents, fire and liability insurance, shall expressly waive any right of subrogation on the part of the insurer

 

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against the other party. Each party, respectively, shall pay any additional costs or charges for obtaining such waiver.

13.4     Policy Requirements . All of the policies of insurance referred to in this Article XIII shall be written in form reasonably satisfactory to Landlord and any Facility Mortgagee and issued by insurance companies with a minimum Financial Strength Rating of “A-” and a Financial Size Rating of “VIII” or higher in the most recent version of Best’s Key Rating Guide, or a minimum rating of “A-” from Standard & Poor’s or equivalent. If Tenant obtains and maintains the general liability insurance described in Section 13.1(e) above on a “claims made” basis, Tenant shall provide continuous liability coverage for claims arising during the Term. In the event such “claims made” basis policy is canceled or not renewed for any reason whatsoever (or converted to an “occurrence” basis policy), Tenant shall either obtain (a) “tail” insurance coverage converting the policies to “occurrence” basis policies providing coverage for a period of at least three (3) years beyond the expiration of the Term, or (b) an extended reporting period of at least three (3) years beyond the expiration of the Term. Tenant shall pay all of the premiums therefor, and deliver certificates thereof to Landlord prior to their effective date (and with respect to any renewal policy, prior to the expiration of the existing policy), and in the event of the failure of Tenant either to effect such insurance in the names herein called for or to pay the premiums therefor, or to deliver such certificates thereof to Landlord, at the times required, Landlord shall be entitled, but shall have no obligation, to effect such insurance and pay the premiums therefor, in which event the cost thereof, together with interest thereon at the Overdue Rate, shall be repayable to Landlord upon demand therefor. Tenant shall obtain, to the extent available on commercially reasonable terms, the agreement of each insurer, by endorsement on the policy or policies issued by it, or by independent instrument furnished to Landlord, that it will give to Landlord thirty (30) days’ (or ten (10) days’ in the case of non-payment of premium) Notice before the policy or policies in question shall be altered, allowed to expire or cancelled. Notwithstanding any provision of this Article XIII to the contrary, Landlord acknowledges and agrees that the coverage required to be maintained by Tenant may be provided under one or more policies with various deductibles or self-insurance retentions by Tenant or its Affiliates, subject to Landlord’s approval not to be unreasonably withheld. Upon written request by Landlord, Tenant shall provide Landlord copies of the property and liability insurance policies when issued by the insurers providing such coverage. Notwithstanding the foregoing, Tenant may procure any of the policies required under this Article XIII from MGMM Insurance Company or any other captive insurance company that is an Affiliate of Tenant’s Parent regardless of the fact that such insurer is not “rated” as otherwise required under this Section 13.4 ; provided, that (i) Landlord has been provided (and continues to be provided annually and as otherwise reasonably requested by Landlord) with the applicable captive insurance company’s most recent financial statements and actuarial report, a list of such captive insurance company’s reinsurers and their subscribed amounts and such other information regarding the applicable captive insurance company as is reasonably requested by Landlord, (ii) Landlord has approved the use of such captive insurer, such approval not to be unreasonably withheld; provided, however, that Landlord’s consent shall not be required to the extent that such captive insurance company reinsures all of its exposures (including, for the avoidance of doubt, any such exposures that relate to properties other than the Facilities), other than with respect to terrorism risks (which shall be subject to the final two sentences of this Section 13.4 ), with insurers meeting the requirements of this Section 13.4 . Notwithstanding the foregoing, Landlord shall be deemed to have approved the use of a captive insurance company for terrorism risk coverage that is not

 

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reinsured by other insurance companies to the extent consistent with Tenant’s terrorism risk insurance program in effect as of the Commencement Date. Any material increase in the level of un-reinsured terrorism risk shall require the consent of Landlord, which consent shall not be unreasonably withheld.

13.5      Increase in Limits . If, from time to time after the Commencement Date, but not more than once in any 24 month period, Landlord determines in the exercise of its reasonable business judgment that the limits of the personal injury or property damage-public liability insurance then carried pursuant to Section 13.1(e) hereof are insufficient, Landlord may give Tenant Notice of acceptable limits for the insurance to be carried; provided, that in no event will Tenant be required to carry insurance in an amount which exceeds the product of (i) the amounts set forth in Section 13.1(e) hereof and (ii) the CPI Increase; and subject to the foregoing limitation, within ninety (90) days after the receipt of such Notice, the insurance shall thereafter be carried with limits as prescribed by Landlord until further increase pursuant to the provisions of this Section 13.5 .

13.6      Blanket Policy . Notwithstanding anything to the contrary contained in this Article XIII , Tenant’s obligations to carry the insurance provided for herein may be brought within the coverage of a so-called blanket policy or policies of insurance carried and maintained by Tenant with respect to the Facilities as well as other properties or assets owned or leased by Tenant and/or its Affiliates that are not subject to this Master Lease; provided, that (i) the requirements of this Article XIII (including satisfaction of the Facility Mortgagee’s requirements and the approval of the Facility Mortgagee) are otherwise satisfied, (ii) Tenant maintains specific allocations acceptable to Landlord, (iii) limits reduced below amounts required in Section 13.1 due to reduction or exhaustion of aggregate limits from loss at properties or assets not subject to this Master Lease are replaced or reinstated as respects the Master Lease within sixty (60) days, and (iv) Landlord is otherwise reasonably satisfied that any such blanket policy affords Tenant and Landlord substantially the same protection that would be obtained from one or more policies of insurance that are not blanket policies. Landlord acknowledges that Tenant’s insurance as in effect on the date hereof satisfies each of the foregoing items (i), (ii) and (iv). For the avoidance of doubt, neither Landlord, nor any Facility Mortgagee shall have any rights whatsoever with respect to proceeds of such blanket policy to the extent such proceeds relate to properties or assets other than the Facilities.

13.7      No Separate Insurance . Tenant shall not, on Tenant’s own initiative or pursuant to the request or requirement of any third party, (i) take out separate insurance concurrent in form or contributing in the event of loss with that required in this Article XIII to be furnished by, or which may reasonably be required to be furnished by, Tenant or (ii) increase the amounts of any then existing insurance by securing an additional policy or additional policies, unless all parties having an insurable interest in the subject matter of the insurance, including in all cases Landlord and all Facility Mortgagees, are included therein as additional named insureds or additional insureds, as appropriate, and the loss is payable under such insurance in the same manner as losses are payable under this Master Lease. Notwithstanding the foregoing, nothing herein shall prohibit Tenant from insuring against risks not required to be insured hereby, and as to such insurance, Landlord and any Facility Mortgagee need not be included therein as additional insureds, nor must the loss thereunder be payable in the same manner as losses are payable hereunder except to the extent required to avoid a default under the Facility Mortgage.

 

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In addition, nothing contained herein shall limit Tenant’s ability to procure policies of insurance with limits in excess of the requirements set forth in this Article XIII .

ARTICLE XIV

CASUALTY

14.1      Property Insurance Proceeds . All proceeds (except business interruption not allocated to rent expenses which shall be payable to and retained by Tenant) payable by reason of any property loss or damage to the Leased Property, or any portion thereof, under any property policy of insurance required to be carried hereunder shall be paid to Facility Mortgagee or to an escrow account held by a third party depositary reasonably acceptable to Landlord and Tenant (pursuant to an escrow agreement acceptable to the parties and intended to implement the terms hereof) and made available to Tenant upon request for the reasonable costs of preservation, stabilization, emergency restoration, business interruption, reconstruction and repair, as the case may be, of any damage to or destruction of the Leased Property, or any portion thereof; provided, however, that the portion of such proceeds that are attributable to Tenant’s obligation to pay Rent shall be applied against Rents due by Tenant hereunder as Rents become due; and provided, further, that if the total amount of proceeds payable net of the applicable deductibles is Fifty Million Dollars ($50,000,000) or less, and, if no Event of Default has occurred and is continuing, the proceeds shall notwithstanding the foregoing provisions be paid to Tenant and, subject to the limitations set forth in this Article XIV used for the repair of any damage to the Leased Property, it being understood and agreed that Tenant shall have no obligation to rebuild any Tenant Capital Improvement (other than any Tenant Capital Improvement for which Landlord has paid Tenant pursuant to Section 10.3(d) or has funded pursuant to Section 10.5 ); provided, further, that, in each case, the Leased Property and such Tenant Capital Improvements for which Landlord has paid are rebuilt in a manner at least substantially equivalent to either that existing on the date of this Master Lease or existing immediately prior to the casualty or as otherwise reasonably satisfactory to Landlord. Any excess proceeds of insurance remaining after the completion of the restoration or reconstruction of the Leased Property to substantially the condition described in the preceding sentence shall be paid to Tenant. All salvage resulting from any risk covered by insurance for damage or loss to the Leased Property shall belong to Landlord. Tenant shall have the right to prosecute and settle insurance claims, provided that Tenant shall consult with and involve Landlord in the process of adjusting any insurance claims under this Article XIV and any final settlement with the insurance company shall be subject to Landlord’s consent, such consent not to be unreasonably withheld.

14.2      Tenant’s Obligations Following Casualty . (a) Subject to paragraphs (b), (c), (d), (e), (f) and (g) below, if a Facility and/or any Tenant Capital Improvements to a Facility are damaged, whether or not from a risk covered by insurance carried by Tenant, except as otherwise provided herein, (i) Tenant shall restore such Leased Property (excluding any Tenant Capital Improvement (other than any Tenant Capital Improvement for which Landlord has paid Tenant pursuant to Section 10.3(d) or has funded pursuant to Section 10.5 )), to substantially the condition required by Section 14.1 , (ii) such damage shall not terminate this Master Lease and (iii) subject to Section 14.5 , Landlord shall cause the Facility Mortgagee to make the proceeds of any insurance held in accordance with Section 14.1 available to Tenant for such restoration in accordance with Section 14.1 .

 

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(b)        Notwithstanding the foregoing, in the event that any Facility is damaged and Tenant reasonably determines that the cost to restore such damage will exceed fifty percent (50%) of the then fair market value of such Facility immediately prior to such Casualty Event, Tenant may elect within one (1) year after the date of such Casualty Event to terminate this Master Lease as to such Facility (but not as to any other Facility) as of the date on which Notice of such determination is delivered to Landlord in which event, Rent will abate in accordance with Section 14.6 and all proceeds of insurance with respect to such Casualty Event (except business interruption not allocated to rent expenses which shall be payable to and retained by Tenant) shall be paid to Landlord.

(c)        In addition to the rights provided in paragraph (b) above, in the event that any Facility is damaged during the final two years of the then-current Term (after giving effect to any Renewal Notice that has been delivered or is delivered pursuant to the proviso below) and the cost to restore such damage will exceed ten percent (10%) of the then fair market value of such Facility immediately prior to such Casualty Event, either Landlord or Tenant may terminate this Master Lease as to such Facility (but not as to any other Facility) as of the date of such damage. If so terminated, Rent will continue unabated for the remainder of the Term and all proceeds of insurance with respect to such Casualty Event (except business interruption not allocated to rent expenses which shall be payable to and retained by Tenant) shall be paid to Landlord (including, for the avoidance of doubt, any proceeds paid to Tenant pursuant to the second proviso in Section 14.1 ); provided, however, such termination by Landlord shall not be effective in the event that Tenant elects, within sixty (60) days of Landlord’s election to terminate, to exercise Tenant’s next arising option for a Renewal Term. Any dispute between Landlord and Tenant with respect to fair market value will be determined by Experts pursuant to Section 34.1 . If Tenant elects to terminate this Master Lease with respect to a Facility during the final two years of the then-current Term in accordance with this Section 14.2 , Tenant shall be deemed to have forfeited Tenant’s right to exercise any further Renewal Terms.

(d)        If Tenant is required, or elects to, restore the affected Facility and the reasonably anticipated cost of the repair or restoration exceeds the amount of proceeds received from the insurance required to be carried hereunder, Tenant shall provide Landlord with evidence reasonably acceptable to Landlord that Tenant has available to it any excess amounts needed to restore such Facility. Such excess amounts necessary to restore such Facility shall be paid by Tenant. If Tenant elects, but is not required, to restore the affected Facility, Landlord shall only be required to make insurance proceeds available to Tenant for such restoration in accordance with Section 14.1 if Tenant reasonably demonstrates that such restoration can be completed within four (4) years of the date on which Tenant can reasonably access the Facility for the purpose of commencing restoration.

(e)        If Tenant has not restored the affected Leased Property and the Primary Intended Use has not recommenced by the date that is the fourth (4th) anniversary of the date on which Tenant can reasonably access the Facility for the purpose of commencing restoration, all remaining insurance proceeds shall be paid to and retained by Landlord free and clear of any claim by or through Tenant unless Tenant is continuing to prosecute the rebuilding or restoration with reasonable diligence.

 

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(f)        In the event that Tenant is neither required nor elects to repair and restore the Leased Property, all property insurance proceeds, other than proceeds reasonably attributed to any Tenant Capital Improvements (other than any Tenant Capital Improvement for which Landlord has paid Tenant pursuant to Section 10.3(d) or has funded pursuant to Section 10.5 ) (and, subject to no Event of Default having occurred and being continuing, any business interruption proceeds in excess of Tenant’s Rent obligations hereunder), which proceeds shall be and remain the property of Tenant, shall be paid to and retained by Landlord free and clear of any claim by or through Tenant except as otherwise specifically provided below in this Article XIV .

(g)        In the event that (i) following a Casualty Event Tenant elects in accordance with Section 14.2(b) to terminate this Master Lease with respect to the affected Facility(ies) and (ii) the insurance proceeds payable to Landlord in accordance with Section 14.2(f) above with respect to such Casualty Event are less than the reasonable estimate of the cost to repair and restore the Leased Property (excluding any Tenant Capital Improvement (other than any Tenant Capital Improvement for which Landlord has paid Tenant pursuant to Section 10.3(d) or has funded pursuant to Section 10.5 )) to substantially the same condition as existed immediately prior to the relevant Casualty Event (such difference being a “ Casualty Shortfall ”), (x) Tenant shall have no responsibility for the first Twenty-Five Million Dollars ($25,000,000) of Casualty Shortfall with respect to any Casualty Event with respect to any individual Facility, and (y) with respect to any Casualty Shortfall with respect to any Casualty Event with respect to any individual Facility in excess of Twenty-Five Million Dollars ($25,000,000), Tenant shall pay to Landlord with respect to each such Facility an amount (the aggregate of such amounts for all affected Facilities, “ Tenant’s Portion of a Casualty Shortfall ”) equal to the product of (x) one-half multiplied by (y) the difference between the amount of the Casualty Shortfall for such Casualty Event for such Facility less Twenty-Five Million dollars ($25,000,000), and upon such payment of Tenant’s Portion of a Casualty Shortfall, Tenant shall have no further responsibility for such Casualty Shortfall and the same shall be borne by Landlord. Tenant may elect to pay to Landlord Tenant’s Portion of a Casualty Shortfall either (i) as a lump sum in cash due and payable within ninety (90) days following the later to occur of (x) the date of final determination of the amount of the Casualty Shortfall and (y) the date Tenant elects to terminate the Master Lease with respect to the affected Facility, or (ii) as additional Rent over the remaining Term. If Tenant elects to pay Tenant’s Portion of a Casualty Shortfall over the remaining Term in accordance with the preceding clause (ii) the following shall apply. The amount necessary to fully amortize Tenant’s Portion of a Casualty Shortfall over the remaining Term (assuming all Renewal Terms are exercised) based on equal monthly payments with interest at the Assumed Rate shall be payable each month on each Payment Date as Additional Charges. If Tenant fails to exercise all remaining Renewal Terms or this Master Lease is terminated prior to its expiration, then the outstanding principal balance of the remaining Tenant’s Portion of a Casualty Shortfall as of the expiration of the Term based on the foregoing amortization calculation shall be payable by Tenant to Landlord as Additional Charges upon the expiration or termination of this Master Lease. For the avoidance of doubt, the provisions of this Section 14.2(g) shall not apply to any Casualty Event as to which Section 14.2(c) is applicable and Tenant shall have no responsibility for any Casualty Shortfall with respect to any Casualty Event as to which Section 14.2(c) is applicable. Notwithstanding the foregoing, Tenant may, following the determination of the amount of any Casualty Shortfall, in Tenant’s sole discretion, elect to continue to pay Rent through the remaining Term of this Lease (including extensions) without

 

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any abatement of Rent that would otherwise be applicable pursuant to Section 14.6 below as a result of a termination of this Master Lease with respect to the affected Facility(ies), in which case Tenant shall not be responsible for any portion of such Casualty Shortfall. In the event that Landlord and Tenant are unable to agree on the amount of any Casualty Shortfall, either Landlord or Tenant may elect to have such amount determined by an Expert in accordance with Section 34.1 .

14.3      No Abatement of Rent . This Master Lease shall remain in full force and effect and Tenant’s obligation to pay the Rent and all other charges required by this Master Lease shall remain unabated during the period required for adjusting insurance, satisfying Legal Requirements, repair and restoration. Subject to Section 14.6 , if, as a result of a Casualty Event, any Facility is in operation for the Primary Intended Use for less than all of the five year period which is the basis for a Percentage Rent reset then the calculation of the Percentage Rent reset will be based on a pro forma Net Revenue of the Facility that would have been achieved in the absence of such Casualty Event. Any dispute regarding such pro forma calculation will be resolved by Experts pursuant to Section 34.1 and until resolved Tenant shall pay Rent based on Tenant’s determination and upon resolution by the Expert, Tenant shall pay any deficiency within ten (10) Business Days.

14.4      Waiver . Tenant waives any statutory rights of termination which may arise by reason of any damage or destruction of the Leased Property but such waiver shall not affect any contractual rights granted to Tenant under this Article XIV .

14.5      Insurance Proceeds Paid to Facility Mortgagee . Notwithstanding anything herein to the contrary, in the event that any Facility Mortgagee is entitled to any insurance proceeds, or any portion thereof, under the terms of any Facility Mortgage, such proceeds (except business interruption not allocated to rent expenses which shall be payable to and retained by Tenant) shall be applied, held and/or disbursed in accordance with the terms of the Facility Mortgage but in all events subject to Tenant’s right to such insurance proceeds (including Tenant’s right to receive all insurance proceeds for a Casualty Event less than Fifty Million Dollars ($50,000,000) in accordance with Section 14.1 ) and provided, that, (i) in the event of a Casualty Event involving proceeds of Fifty Million Dollars ($50,000,000) or more where Tenant elects within twelve (12) months of the date of the relevant Casualty Event to restore the affected Facility and Tenant reasonably demonstrates that such restoration can be completed within four (4) years of the date on which Tenant can reasonably access the Facility for the purpose of commencing restoration (after the date of such Casualty Event but without regard to the date on which Tenant elects to restore the affected Facility), or (ii) in the event of a Casualty Event involving proceeds of Fifty Million Dollars ($50,000,000) or more where Tenant is required by this Master Lease to restore the affected Facility, Landlord will cause, subject to Section 14.2(e) , any Facility Mortgagee that has received, or thereafter does receive, insurance proceeds to make such proceeds available to Tenant for the reasonable costs of preservation, stabilization, emergency restoration, reconstruction and repair for the affected Facility.

14.6      Termination of Master Lease; Abatement of Rent . In the event this Master Lease is terminated as to an affected Facility pursuant to Section 8.2 (in respect of Landlord being in jeopardy of failing to comply with a regulatory requirement material to the continued operation of a Facility), Section 14.2 (b)  (in the event that Landlord or Tenant elect to terminate

 

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the Master Lease with respect to a Facility following a Casualty Event), Article XV , or any other provision of this Master Lease which provides for termination of this Master Lease with respect to a Facility (a “ Leased Property Rent Adjustment Event ”), then:

(i)         the Rent due hereunder from and after the effective date of any such Leased Property Rent Adjustment Event shall be reduced by an amount equal to the Allocable Rent Amount with respect to any such affected Facility; and

(ii)        Landlord shall retain any claim which Landlord may have against Tenant for failure to insure such Leased Property as required by Article XIII , except that any portion of Tenant’s Portion of a Casualty Shortfall that was paid as a result of Tenant’s failure to comply with Article XIII shall reduce any such liability on a dollar for dollar basis.

14.7      Multiple Facility Mortgagees . In any provisions of this Article XIV, XV or any other provision of this Master Lease providing for any determination, decision or election by a Facility Mortgagee, the determination, decision or election of the Facility Mortgagee of the highest priority with respect to the Facility in question shall be controlling.

ARTICLE XV

CONDEMNATION

15.1      Condemnation .

(a)         Total Taking . If there is a permanent Condemnation of Leased Property with respect to all or substantially all of any Facility, this Master Lease shall terminate with respect to such Facility (but no other portion of the Leased Property) as of the day before the Date of Taking for such Facility and Rent will abate in accordance with Section 14.6 .

(b)         Partial Taking .

(i)        If there is a Condemnation of a portion of a Facility, this Master Lease shall remain in effect if the affected Facility is not thereby rendered, in the reasonable determination of Tenant, Unsuitable for Its Primary Intended Use, but if such Facility is thereby rendered Unsuitable for Its Primary Intended Use, this Master Lease shall at Tenant’s option terminate with respect to such Facility as of the date on which Notice of such determination is delivered to Landlord and Rent will abate in accordance with Section 14.6 .

(ii)       Notwithstanding the foregoing, in the event of a Condemnation of a portion of a Facility representing fifty (50%) or more of the fair market value of such Facility, Tenant may terminate this Master Lease as to such Facility (but not as to any other Facility) as of the date on which Notice of such termination is delivered to Landlord in which event, Rent will abate in accordance with Section 14.6 .

(iii)     In the event of a Condemnation of a portion of a Facility representing ten percent (10%) or more of the fair market value of such Facility during the final two years of the then-current Term (after giving effect to any Renewal Notice that has been delivered or is delivered pursuant to the proviso below), either Landlord or Tenant may terminate

 

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this Master Lease as to such Facility (but not as to any other Facility) as of the day before the Date of Taking and Rent will continue unabated for the remainder of the Term; provided, however, such termination by Landlord shall not be effective in the event that Tenant elects, within sixty (60) days of Landlord’s election to terminate, to exercise Tenant’s next arising option for a Renewal Term. Any dispute between Landlord and Tenant with respect to the extent of a Condemnation will be determined by Experts pursuant to Section 34.1 . If Tenant elects to terminate this Master Lease with respect to a Facility during the final two years of the then-current Term in accordance with this Section 15.1 , Tenant shall be deemed to have forfeited Tenant’s right to exercise any further Renewal Terms.

(c)         Restoration . If there is a partial Condemnation of a Facility and this Master Lease remains in full force and effect with respect to such Facility, Landlord shall make available to Tenant the portion of the Award applicable to restoration of the Leased Property, and Tenant shall accomplish all necessary restoration whether or not the amount provided by the Condemnor for restoration is sufficient and the Base Rent shall be reduced by such amount as may be agreed upon by Landlord and Tenant or, if they are unable to reach such an agreement within a period of ninety (90) days after the occurrence of the Condemnation, then the Base Rent for such Facility shall be proportionately reduced based on the relative values of the property taken by condemnation and the portion of the affected Facility remaining subject to the Master Lease. In the event that Landlord and Tenant are unable to agree on such relative values within such ninety (90) day period, either Landlord or Tenant may request that such relative values be determined by an Expert in accordance with Section 34.1 . Tenant shall restore such Leased Property (as nearly as possible under the circumstances) to a complete architectural unit of the same general character and condition as such Leased Property existing immediately prior to such Condemnation. If Tenant has not so restored the affected Leased Property and the Primary Intended Use has not recommenced by the date that is the fourth (4th) anniversary of the date on which Tenant can reasonably access the Facility for the purpose of commencing restoration, any remaining Award shall be paid to and retained by Landlord free and clear of any claim by or through Tenant unless Tenant is continuing to prosecute the rebuilding or restoration with reasonable diligence.

15.2      Award Distribution . Except as set forth below, the entire Award shall belong to and be paid to Landlord. Tenant shall, however, be entitled to pursue its own claim with respect to the Condemnation for Tenant’s lost profits value and moving expenses and, the portion of the Award, if any, allocated to any Tenant Capital Improvements (other than any Tenant Capital Improvement for which Landlord has paid Tenant pursuant to Section 10.3(d) or has funded pursuant to Section 10.5 ) and Tenant’s Property shall be and remain the property of Tenant free of any claim thereto by Landlord.

15.3      Temporary Taking . The taking of the Leased Property, or any part thereof, shall constitute a Condemnation only when the use and occupancy by the taking authority is reasonably expected to exceed 180 consecutive days. During any shorter period, which shall be a temporary taking, all the provisions of this Master Lease shall remain in full force and effect and the Award allocable to the Term shall be paid to Tenant.

15.4      No Abatement of Rent . This Master Lease shall remain in full force and effect and Tenant’s obligation to pay the Rent and all other charges required by this Master Lease shall

 

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remain unabated during the period required for claiming an Award, satisfying Legal Requirements and restoration. Subject to Section 15.7 , if, as a result of a Condemnation, any Facility is in operation for the Primary Intended Use for less than all of the five year period which is the basis for a Percentage Rent reset then the calculation of the Percentage Rent reset will be based on a pro forma Net Revenue of the Facility that would have been achieved in the absence of such Condemnation. Any dispute regarding such pro forma calculation will be resolved by Experts pursuant to Section 34.1 and until resolved Tenant shall pay Rent based on Tenant’s determination and upon resolution by the Expert, Tenant shall pay any deficiency within ten (10) Business Days.

15.5      Waiver . Tenant waives any statutory rights of termination which may arise by reason of any Condemnation of the Leased Property but such waiver shall not affect any contractual rights granted to Tenant under this Article XV .

15.6      Award Paid to Facility Mortgagee . Notwithstanding anything herein to the contrary, in the event that any Facility Mortgagee is entitled to any Award, or any portion thereof, under the terms of any Facility Mortgage, such Award shall be applied, held and/or disbursed in accordance with the terms of the Facility Mortgage; provided, that, (i) in the event of a Condemnation where Tenant elects within twelve (12) months of the date of the relevant Condemnation to restore the affected Facility and Tenant reasonably demonstrates that such restoration can be completed within four (4) years of the date on which Tenant can reasonably access the Facility for the purpose of commencing restoration (after the date of such Condemnation but without regard to the date on which Tenant elects to restore the affected Facility), or (ii) in the event of a Condemnation where Tenant is required by this Master Lease to restore the affected Facility, Landlord will cause, subject to the final sentence of Section 15.1(c) , any Facility Mortgagee that has received, or thereafter does receive, any Award to make such Award available to Tenant for the reasonable costs of preservation, stabilization, emergency restoration, reconstruction and repair for the affected Facility.

15.7      Termination of Master Lease; Abatement of Rent . In the event this Master Lease is terminated with respect to the affected portion of the Leased Property as a result of a Condemnation pursuant to Section 15.1(a) , (b)(i) or (b)(ii) , the Base Rent due hereunder from and after the effective date of such termination shall be reduced by an amount determined in the same manner as set forth in Section 14.6 hereof.

ARTICLE XVI

DEFAULT; REMEDIES

16.1      Events of Default . (a) Any one or more of the following shall constitute an “Event of Default”:

(i)        Tenant shall fail to pay any installment of Rent within five (5) Business Days of when due and such failure is not cured within three (3) Business Days after Notice from Landlord of Tenant’s failure to pay such amount when due; provided, that Tenant shall be entitled to only one (1) such notice and additional three (3) Business Day cure period in any Lease Year;

 

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(ii)        Tenant shall fail to pay any Additional Charge when due and such failure is not cured within five (5) Business Days after Notice from Landlord of Tenant’s failure to pay such amount when due;

(iii)       a default shall occur under the Guaranty which is not cured within thirty (30) days after Notice from Landlord to Guarantor;

(iv)      Tenant or Guarantor shall:

 

(1) admit in writing its inability to pay its debts generally as they become due;

 

(2) file a petition in bankruptcy or a petition to take advantage of any insolvency act;

 

(3) make an assignment for the benefit of its creditors;

 

(4) consent to the appointment of a receiver of itself or of the whole or any substantial part of its property; or

 

(5) file a petition or answer seeking reorganization or arrangement under the United States bankruptcy laws or any other applicable law or statute of the United States of America or any state thereof;

(v)      Tenant or Guarantor shall be adjudicated as bankrupt or a court of competent jurisdiction shall enter an order or decree appointing, without the consent of Tenant or Guarantor, a receiver of Tenant or Guarantor or of the whole or substantially all of Tenant’s or Guarantor’s property, or approving a petition filed against Tenant or Guarantor seeking reorganization or arrangement of Tenant or Guarantor under the United States bankruptcy laws or any other applicable law or statute of the United States of America or any state thereof, and such judgment, order or decree shall not be vacated or set aside or stayed within sixty (60) days from the date of the entry thereof;

(vi)     Tenant or Guarantor shall be liquidated or dissolved (except that Guarantor may be liquidated or dissolved into Tenant or any other Person so long as its assets are distributed following such liquidation or dissolution to Tenant or such other Person);

(vii)    the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached as a result of a final, non-appealable judgment in any proceeding relating to more than Ten Million Dollars ($10,000,000) and the same shall not be vacated, discharged (or bonded or otherwise similarly secured) within the later of ninety (90) days after such final, non-appealable judgment is entered or thirty (30) days after receipt by Tenant of notice thereof from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law;

(viii)   except as permitted in accordance with Section 7.2(d) , Tenant voluntarily ceases operations for its Primary Intended Use at a Facility; and

 

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(ix)     any representation made by Tenant pursuant to Section 8.1 proves to be untrue when made in any material respect and the same materially and adversely affects Landlord;

(x)     any applicable license material to a Facility’s operation for its Primary Intended Use is at any time terminated or revoked or suspended for more than thirty (30) days (and causes cessation of gaming activity at a Facility) and such termination, revocation or suspension is not stayed pending appeal and would reasonably be expected to have a material adverse effect on Tenant, the Facilities, or on the Leased Property, taken as a whole; provided, that the foregoing shall not constitute an Event of Default if Tenant would then be permitted to cease operating such Facility pursuant to Section 7.2(d) ;

(xi)     except to a permitted assignee pursuant to Section 22.2 or a permitted subtenant, or with respect to the granting of a permitted pledge hereunder to a Permitted Leasehold Mortgagee, the sale or transfer, without Landlord’s consent, of all or any portion of any Gaming License or similar certificate or license relating to the Leased Property;

(xii)    if Tenant shall fail to observe or perform any other term, covenant or condition of this Master Lease in any material respect and such failure is not cured by Tenant within thirty (30) days after Notice thereof from Landlord, unless such failure cannot with due diligence be cured within a period of thirty (30) days, in which case such failure shall not be deemed to be an Event of Default if Tenant proceeds promptly and with due diligence to cure the failure and diligently completes the curing thereof within one hundred twenty (120) days after such notice from Landlord; provided, however, that such notice shall be in lieu of and not in addition to any notice required under applicable law; and

(xiii)   breach by Tenant of Section 23.3 hereof for two consecutive Test Periods ending on the last day of two consecutive fiscal quarters, commencing with the two consecutive Test Periods ending on December 31, 2016 and March 31, 2017.

(b)        No Event of Default (other than a failure to make payment of money) shall be deemed to exist under Section 16.1 during any time the curing thereof is prevented by an Unavoidable Delay, provided, that upon the cessation of the Unavoidable Delay, Tenant remedies the default without further delay.

(c)        Notwithstanding the foregoing, in the event that Landlord believes that there has been a breach that would constitute an Event of Default under Section 16.1(a) (ii), (iii), subclause (1)  of (iv), (viii), (ix), (x), (xi), (xii)  or (xiii) , above, Landlord shall notify Tenant of such breach and, if Tenant disagrees as to the existence of such breach or that such breach would constitute an Event of Default, Landlord and Tenant shall submit the determination of whether or not there exists an Event of Default to Experts pursuant to Section 34.1 . If the Expert determines that the matter in question is or would give rise to an Event of Default, Tenant shall have an additional thirty (30) day period to cure such breach before such breach constitutes an Event of Default, unless such breach cannot with due diligence be cured within a period of thirty (30) days, in which case such breach shall not be deemed to be an Event of Default if Tenant proceeds promptly and with due diligence to cure the breach and diligently completes the curing thereof within one hundred twenty (120) days after such determination.

 

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16.2     Certain Remedies .

(a)        If an Event of Default shall have occurred and be continuing, Landlord may (i) terminate this Master Lease by giving Tenant no less than ten (10) days’ Notice of such termination (and Tenant shall have the right to cure the event giving rise to the Event of Default during such ten (10) day period) and the Term shall terminate and all rights of Tenant under this Master Lease shall cease, (ii) seek damages as provided in Section 16.3 hereof, and/or (iii) exercise any other right or remedy at law or in equity available to Landlord as a result of any Event of Default. Tenant shall pay as Additional Charges all costs and expenses incurred by or on behalf of Landlord, including reasonable attorneys’ fees and expenses, as a result of any Event of Default hereunder. If an Event of Default shall have occurred and be continuing, whether or not this Master Lease has been terminated pursuant to the first sentence of this Section 16.2 , Tenant shall, to the extent permitted by law (including applicable Gaming Regulations), if required by Landlord to do so, immediately surrender to Landlord possession of all or any portion of the Leased Property (including any Tenant Capital Improvements) as to which Landlord has so demanded and quit the same and Landlord may, to the extent permitted by law (including applicable Gaming Regulations), enter upon and repossess such Leased Property and any Capital Improvement thereto by reasonable force, summary proceedings, ejectment or otherwise, and, to the extent permitted by law (including applicable Gaming Regulations), may remove Tenant and all other Persons and any of Tenant’s Property from such Leased Property.

(b)        Notwithstanding anything contained herein to the contrary, Landlord shall not be entitled to terminate this Master Lease by reason of an Event of Default (but Landlord may exercise all other rights and remedies), unless and until Landlord has, following the occurrence of an Event of Default, delivered a notice (“ Event of Default Notice ”) to Tenant stating the Event of Default, and containing the following caption (in bold 16 point type):

“THIS IS AN EVENT OF DEFAULT NOTICE. FAILURE TO TAKE IMMEDIATE ACTION AND TO CURE THE EVENT(S) OF DEFAULT AS SPECIFIED BELOW WITHIN TEN (10) DAYS OF RECEIPT OF THIS NOTICE MAY LEAD TO LANDLORD’S TERMINATION OF THE MASTER LEASE AND/OR THE EXERCISE OF OTHER REMEDIES THEREUNDER.”

16.3      Damages . None of (i) the termination of this Master Lease, (ii) the repossession of the Leased Property (including any Capital Improvements to any Facility), (iii) the failure of Landlord to relet the Leased Property or any portion thereof, (iv) the reletting of all or any portion of the Leased Property, or (v) the inability of Landlord to collect or receive any rentals due upon any such reletting, shall relieve Tenant of its liabilities and obligations hereunder, all of which shall survive any such termination, repossession or reletting. Landlord and Tenant agree that Landlord shall have no obligation to mitigate Landlord’s damages under this Master Lease. If any such termination of this Master Lease occurs (whether or not Landlord terminates Tenant’s right to possession of the Leased Property), Tenant shall forthwith pay to Landlord all

 

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Rent due and payable under this Master Lease to and including the date of such termination. Thereafter:

Tenant shall forthwith pay to Landlord, at Landlord’s option, as and for liquidated and agreed current damages, as Landlord’s sole monetary remedy (without prejudice to any rights of Landlord pursuant to Article XXI, the indemnity in the final proviso of Section 5.1 , the indemnity in the last sentence of Section 12.1 , Section 16.2(a) , Section 32.4 or Section 37.1 ), for the occurrence of an Event of Default, either:

(A)        the sum of:

(i)        the worth at the time of award of the unpaid Rent which had been earned at the time of termination to the extent not previously paid by Tenant under this Section 16.3 ;

(ii)      the worth at the time of award of the amount by which the unpaid Rent which would have been earned after termination until the time of award exceeds the amount of such rental loss that Tenant proves could have been reasonably avoided;

(iii)      the worth at the time of award of the amount by which the unpaid Rent for the balance of the Term after the time of award exceeds the amount of such rental loss that Tenant proves could be reasonably avoided; plus

(iv)      any other amount reasonably necessary to compensate Landlord for all the detriment proximately caused by Tenant’s failure to perform its obligations under this Master Lease or which in the ordinary course of things would be likely to result therefrom.

As used in clauses (i) and (ii) above, the “worth at the time of award” shall be computed by allowing interest at the Overdue Rate. As used in clause (iii) above, the “worth at the time of award” shall be computed by discounting such amount at the discount rate of the Federal Reserve Bank of New York at the time of award plus one percent (1%) and reducing such amount by the portion of the unpaid Rent that Tenant proves could be reasonably avoided. For purposes of determining the worth at the time of the award, Percentage Rent that would have been payable for the remainder of the Term shall be deemed to be the greater of (y) the same as the Percentage Rent for the then current Lease Year or, if not determinable, the immediately preceding Lease Year; and (z) such other amount as Landlord shall demonstrate could reasonably have been earned (assuming Net Revenues will have not been impacted by any of the conditions that contributed to the Event of Default).

or

(B)        if Landlord chooses not to terminate Tenant’s right to possession of the Leased Property (whether or not Landlord terminates the Master Lease), each installment of said Rent and other sums payable by Tenant to Landlord under this Master Lease as the same becomes due and payable, together with interest at the Overdue Rate from the date when due until paid, and Landlord may enforce, by action or otherwise, any other term or

 

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covenant of this Master Lease (and Landlord may at any time thereafter terminate Tenant’s right to possession of the Leased Property and seek damages under subparagraph (A) hereof, to the extent not already paid for by Tenant under this subparagraph (B)).

16.4      Receiver . Upon the occurrence and continuance of an Event of Default, and upon commencement of proceedings to enforce the rights of Landlord hereunder, but subject to any limitations of applicable law, Landlord shall be entitled, as a matter of right, to the appointment of a receiver or receivers acceptable to Landlord of the Leased Property and of the revenues, earnings, income, products and profits thereof, pending the outcome of such proceedings, with such powers as the court making such appointment shall confer.

16.5      Waiver . If Landlord initiates judicial proceedings or if this Master Lease is terminated by Landlord pursuant to this Article XVI , Tenant waives, to the extent permitted by applicable law, (i) any right of redemption, re-entry or repossession; and (ii) the benefit of any laws now or hereafter in force exempting property from liability for rent or for debt.

16.6      Application of Funds . Any payments received by Landlord under any of the provisions of this Master Lease during the existence or continuance of any Event of Default which are made to Landlord rather than Tenant due to the existence of an Event of Default shall be applied to Tenant’s obligations in the order which Landlord may reasonably determine or as may be prescribed by the laws of the State.

ARTICLE XVII

TENANT’S FINANCING

17.1        Permitted Leasehold Mortgagees .

(a)        On one or more occasions without Landlord’s prior consent Tenant may mortgage or otherwise encumber Tenant’s estate in and to the Leased Property (the “ Leasehold Estate ”) to one or more Permitted Leasehold Mortgagees under one or more Permitted Leasehold Mortgages and pledge its right, title and interest under this Master Lease as security for such Permitted Leasehold Mortgages or any Debt Agreement secured thereby; provided, that no Person shall be considered a Permitted Leasehold Mortgagee unless (1) such Person delivers to Landlord a written agreement providing (i) that (unless this Master Lease has been terminated as to a particular Facility) such Permitted Leasehold Mortgagee and any lenders for whom it acts as representative, agent or trustee, will not use or dispose of any Gaming License for use at a location other than at the Facility to which such Gaming License relates as of the date such Person becomes a Permitted Leasehold Mortgagee (or, in the case of any Facility added to the Master Lease after such date, as of the date that such Facility is added to the Master Lease), and (ii) an express acknowledgement that, in the event of the exercise by the Permitted Leasehold Mortgagee of its rights under the Permitted Leasehold Mortgage, the Permitted Leasehold Mortgagee shall be required to (except for a transfer that meets the requirements of Section 22.2(a)(ii )) secure the approval of Landlord for the replacement of Tenant with respect to the affected portion of the Leased Property and contain the Permitted Leasehold Mortgagee’s acknowledgment that such approval may be granted or withheld by Landlord in accordance with the provisions of Article XXII of this Master Lease, and (2) the underlying Permitted Leasehold

 

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Mortgage includes an express acknowledgement that any exercise of remedies thereunder that would affect the Leasehold Estate shall be subject to the terms of the Master Lease. Any Facility Mortgagee and its successors and assigns, by accepting any Facility Mortgage, shall be deemed without executing any further document or instrument, to have also agreed to recognize the rights of any Permitted Leasehold Mortgagee as provided in this Article XVII and to have agreed not to disturb such rights in any way except through the exercise of the rights expressly granted to Landlord in this Master Lease or available at law or in equity to Landlord by reason of the default by Tenant under this Master Lease.

(b)         Notice to Landlord .

(i)        (1) If Tenant shall, on one or more occasions, mortgage Tenant’s Leasehold Estate and if the holder of such Permitted Leasehold Mortgage shall provide Landlord with Notice of such Permitted Leasehold Mortgage together with a true copy of such Permitted Leasehold Mortgage and the name and address of the Permitted Leasehold Mortgagee, Landlord and Tenant agree that, following receipt of such Notice by Landlord, the provisions of this Section 17.1 shall apply in respect to each such Permitted Leasehold Mortgage.

(2)        In the event of any assignment of a Permitted Leasehold Mortgage or in the event of a change of address of a Permitted Leasehold Mortgagee or of an assignee of such Mortgage, Notice of the new name and address shall be provided to Landlord.

(ii)        Landlord shall promptly upon receipt of a communication purporting to constitute the notice provided for by subsection (b)(i) above acknowledge by an executed and notarized instrument receipt of such communication as constituting the notice provided for by subsection (b)(i) above and confirming the status of the Permitted Leasehold Mortgagee as such or, in the alternative, notify Tenant and the Permitted Leasehold Mortgagee of the rejection of such communication as not conforming with the provisions of this Section 17.1 and specify the specific basis of such rejection.

(iii)       After Landlord has received the notice provided for by subsection (b)(i) above, Tenant, upon being requested to do so by Landlord, shall with reasonable promptness provide Landlord with copies of the note or other obligation secured by such Permitted Leasehold Mortgage and of any other documents pertinent to the Permitted Leasehold Mortgage as specified by Landlord. If requested to do so by Landlord, Tenant shall thereafter also provide Landlord from time to time with a copy of each amendment or other modification or supplement to such instruments. All recorded documents shall be accompanied by the appropriate recording stamp or other certification of the custodian of the relevant recording office as to their authenticity as true and correct copies of official records and all nonrecorded documents shall be accompanied by a certification by Tenant that such documents are true and correct copies of the originals. From time to time upon being requested to do so by Landlord, Tenant shall also notify Landlord of the date and place of recording and other pertinent recording data with respect to such instruments as have been recorded.

(c)         Default Notice . Landlord, upon providing Tenant any notice of: (i) default under this Master Lease or (ii) a termination of this Master Lease, shall at the same time provide a copy of such notice to every Permitted Leasehold Mortgagee for which notice has

 

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been properly provided to Landlord pursuant to Section 17.1(b) hereof. No such notice by Landlord to Tenant shall be deemed to have been duly given unless and until a copy thereof has been sent, in the manner prescribed in Section 35.1 of this Master Lease, to every Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof. From and after such notice has been sent to a Permitted Leasehold Mortgagee, such Permitted Leasehold Mortgagee shall have the same period, after the giving of such notice upon its remedying any default or acts or omissions which are the subject matter of such notice or causing the same to be remedied, as is given Tenant after the giving of such notice to Tenant, plus in each instance, the additional periods of time specified in subsections (d) and (e) of this Section 17.1 to remedy, commence remedying or cause to be remedied the defaults or acts or omissions which are the subject matter of such notice specified in any such notice. Landlord shall accept such performance by or at the instigation of such Permitted Leasehold Mortgagee as if the same had been done by Tenant. Tenant authorizes each Permitted Leasehold Mortgagee (to the extent such action is authorized under the applicable Debt Agreement) to take any such action at such Permitted Leasehold Mortgagee’s option and does hereby authorize entry upon the premises by the Permitted Leasehold Mortgagee for such purpose.

(d)         Notice to Permitted Leasehold Mortgagee . Anything contained in this Master Lease to the contrary notwithstanding, if any default shall occur which entitles Landlord to terminate this Master Lease, Landlord shall have no right to terminate this Master Lease on account of such default unless, following the expiration of the period of time given Tenant to cure such default or the act or omission which gave rise to such default, Landlord shall notify every Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof of Landlord’s intent to so terminate at least thirty (30) days in advance of the proposed effective date of such termination if such default is capable of being cured by the payment of money, and at least ninety (90) days in advance of the proposed effective date of such termination if such default is not capable of being cured by the payment of money (“ Termination Notice ”). The provisions of subsection (e) below of this Section 17.1 shall apply if, during such thirty (30) or ninety (90) days (as the case may be) Termination Notice period, any Permitted Leasehold Mortgagee shall:

(i)         notify Landlord of such Permitted Leasehold Mortgagee’s desire to nullify such Termination Notice; and

(ii)        pay or cause to be paid all Rent, Additional Charges, and other payments (i) then due and in arrears as specified in the Termination Notice to such Permitted Leasehold Mortgagee and (ii) which may become due during such thirty (30) or ninety (90) day (as the case may be) period (as the same may become due); and

(iii)       comply or in good faith, with reasonable diligence and continuity, commence to comply with all nonmonetary requirements of this Master Lease then in default and reasonably susceptible of being complied with by such Permitted Leasehold Mortgagee, provided, however, that such Permitted Leasehold Mortgagee shall not be required during such ninety (90) day period to cure or commence to cure any default consisting of Tenant’s failure to satisfy and discharge any lien, charge or encumbrance against Tenant’s interest in this Master Lease or the Leased Property, or any of Tenant’s other assets junior in priority to the lien of the mortgage or other security documents held

 

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by such Permitted Leasehold Mortgagee or any matter which Permitted Leasehold Mortgagee is prevented from performing because of any injunction or stay applicable during any bankruptcy or other judicial proceeding; and

(iv)        during such thirty (30) or ninety (90) day period, the Permitted Leasehold Mortgagee shall respond, with reasonable diligence, to requests for information from Landlord as to the Permitted Leasehold Mortgagee’s (and related lenders’) intent to pay such Rent and other charges and comply with this Master Lease.

(e)          Procedure on Default .

(i)         If Landlord shall elect to terminate this Master Lease by reason of any Event of Default of Tenant that has occurred and is continuing, and a Permitted Leasehold Mortgagee shall have proceeded in the manner provided for by subsection (d) of this Section 17.1 , the specified date for the termination of this Master Lease as fixed by Landlord in its Termination Notice shall be extended for a period of six (6) months; provided, that such Permitted Leasehold Mortgagee shall, during such six-month period (and during the period of any continuance referred to in subsection (e)(ii) below):

(1)        pay or cause to be paid the Rent, Additional Charges and other monetary obligations of Tenant under this Master Lease as the same become due, and continue its good faith efforts to perform or cause to be performed all of Tenant’s other obligations under this Master Lease, excepting (A) obligations of Tenant to satisfy or otherwise discharge any lien, charge or encumbrance against Tenant’s interest in this Master Lease or the Leased Property or any of Tenant’s other assets junior in priority to the lien of the mortgage or other security documents held by such Permitted Leasehold Mortgagee and (B) past nonmonetary obligations then in default and not reasonably susceptible of being cured by such Permitted Leasehold Mortgagee; and

(2)        if not enjoined or stayed pursuant to a bankruptcy or insolvency proceeding or other judicial order, diligently continue to pursue acquiring or selling Tenant’s interest in this Master Lease and the Leased Property by foreclosure of the Permitted Leasehold Mortgage or other appropriate means and diligently prosecute the same to completion.

(ii)      If at the end of such six (6) month period such Permitted Leasehold Mortgagee is complying with subsection (e)(i) above, this Master Lease shall not then terminate, and the time for completion by such Permitted Leasehold Mortgagee of its proceedings shall continue (provided that for the time of such continuance, such Permitted Leasehold Mortgagee is in compliance with subsection (e)(i) above) (x) so long as such Permitted Leasehold Mortgagee is enjoined or stayed pursuant to a bankruptcy or insolvency proceeding or other judicial order and if so enjoined or stayed, thereafter for so long as such Permitted Leasehold Mortgagee proceeds to complete steps to acquire or sell Tenant’s interest in this Master Lease by foreclosure of the Permitted Leasehold Mortgage or by other appropriate means with reasonable diligence and continuity but not to exceed twelve (12) months after the Permitted Leasehold Mortgagee is no longer so enjoined or stayed from prosecuting the same and in no event longer than twenty-four (24) months from the date of Landlord’s initial notification to Permitted Leasehold

 

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Mortgagee pursuant to Section 17.1(d) hereof, and (y) if such Permitted Leasehold Mortgagee is not so enjoined or stayed, thereafter for so long as such Permitted Leasehold Mortgagee proceeds to complete steps to acquire or sell Tenant’s interests in this Master Lease by foreclosure of the Permitted Leasehold Mortgage or by other appropriate means with reasonable diligence and continuity but not to exceed twelve (12) months from the date of Landlord’s initial notification to Permitted Leasehold Mortgagee pursuant to Section 17.1(d) hereof. Nothing in this subsection (e) of this Section 17.1 , however, shall be construed to extend this Master Lease beyond the original term thereof as extended by any options to extend the Term of this Master Lease properly exercised by Tenant or a Permitted Leasehold Mortgagee in accordance with Section 1.4 , nor to require a Permitted Leasehold Mortgagee to continue such foreclosure proceeding after the default has been cured. If the default shall be cured pursuant to the terms and within the time periods allowed in subsections (d) and (e) of this Section 17.1 and the Permitted Leasehold Mortgagee shall discontinue such foreclosure proceedings, this Master Lease shall continue in full force and effect as if Tenant had not defaulted under this Master Lease.

(iii)      If a Permitted Leasehold Mortgagee is complying with subsection (e)(i) of this Section 17.1 , upon the acquisition of Tenant’s Leasehold Estate herein by a Discretionary Transferee this Master Lease shall continue in full force and effect as if Tenant had not defaulted under this Master Lease, provided, that such Discretionary Transferee cures all outstanding defaults that can be cured through the payment of money and all other defaults that are reasonably susceptible of being cured.

(iv)     For the purposes of this Section 17.1 , the making of a Permitted Leasehold Mortgage shall not be deemed to constitute an assignment or transfer of this Master Lease nor of the Leasehold Estate hereby created, nor shall any Permitted Leasehold Mortgagee, as such, be deemed to be an assignee or transferee of this Master Lease or of the Leasehold Estate hereby created so as to require such Permitted Leasehold Mortgagee, as such, to assume the performance of any of the terms, covenants or conditions on the part of Tenant to be performed hereunder; but the purchaser at any sale of this Master Lease (including a Permitted Leasehold Mortgagee if it is the purchaser at foreclosure) and of the Leasehold Estate hereby created in any proceedings for the foreclosure of any Permitted Leasehold Mortgage, or the assignee or transferee of this Master Lease and of the Leasehold Estate hereby created under any instrument of assignment or transfer in lieu of the foreclosure of any Permitted Leasehold Mortgage, shall be subject to Article XXII hereof (including the requirement that such purchaser assume the performance of the terms, covenants or conditions on the part of Tenant to be performed hereunder and meet the qualifications of Section 22.2 or be reasonably consented to by Landlord in accordance with Section 22.1 hereof).

(v)     Any Permitted Leasehold Mortgagee or other acquirer of the Leasehold Estate of Tenant pursuant to foreclosure, assignment in lieu of foreclosure or other proceedings in accordance with the requirements of Section 22.2(a)(ii) of this Master Lease may, upon acquiring Tenant’s Leasehold Estate, without further consent of Landlord, sell and assign the Leasehold Estate in accordance with the requirements of Article XXII of this Master Lease and enter into Permitted Leasehold Mortgages in the same manner as the original Tenant, subject to the terms hereof.

 

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(vi)        Notwithstanding any other provisions of this Master Lease, any sale of this Master Lease and of the Leasehold Estate hereby created in any proceedings for the foreclosure of any Permitted Leasehold Mortgage, or the assignment or transfer of this Master Lease and of the Leasehold Estate hereby created in lieu of the foreclosure of any Permitted Leasehold Mortgage, shall be deemed to be a permitted sale, transfer or assignment of this Master Lease and of the Leasehold Estate hereby created to the extent that the successor tenant under this Master Lease is a Discretionary Transferee and the transfer otherwise complies with the requirements of Section 22.2(a)(ii) of this Master Lease or the transferee is reasonably consented to by Landlord in accordance with Section 22.1 hereof.

(f)         New Lease . In the event of the termination of this Master Lease other than due to a default as to which the Permitted Leasehold Mortgagee had the opportunity to, but did not, cure the default as set forth in Sections 17.1(d) and 17.1(e) above, Landlord shall provide each Permitted Leasehold Mortgagee with Notice that this Master Lease has been terminated (“ Notice of Termination ”), together with a statement of all sums which would at that time be due under this Master Lease but for such termination, and of all other defaults, if any, then known to Landlord. Landlord agrees to enter into a new lease (“ New Lease ”) of the Leased Property with such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee (in each case if a Discretionary Transferee) for the remainder of the Term (including any Renewal Terms) of this Master Lease, effective as of the date of termination, at the rent and additional rent, and upon the terms, covenants and conditions (including all options to renew but excluding requirements which have already been fulfilled) of this Master Lease, provided:

(i)        Such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall make a binding, written, irrevocable commitment to Landlord for such New Lease within thirty (30) days after the date such Permitted Leasehold Mortgagee receives Landlord’s Notice of Termination of this Master Lease given pursuant to this Section 17.1(f) ;

(ii)        Such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall pay or cause to be paid to Landlord at the time of the execution and delivery of such New Lease, any and all sums which would at the time of execution and delivery thereof be due pursuant to this Master Lease but for such termination and, in addition thereto, all reasonable expenses, including reasonable attorney’s fees, which Landlord shall have incurred by reason of such termination and the execution and delivery of the New Lease and which have not otherwise been received by Landlord from Tenant or other party in interest under Tenant; and

(iii)      Such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee shall agree to remedy any of Tenant’s defaults of which said Permitted Leasehold Mortgagee was notified by Landlord’s Notice of Termination (or in any subsequent notice) and which can be cured through the payment of money or are reasonably susceptible of being cured by Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee.

(g)      New Lease Priorities . It is the intention of the parties that such New Lease shall continue to maintain the same priority as this Master Lease with regard to any Facility Mortgage or any other lien, charge or encumbrance created by the acts of Landlord on the Leased Premises or any part thereof or this Master Lease (but Landlord shall not be deemed

 

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to make any representation or warranty to that effect). If more than one Permitted Leasehold Mortgagee shall request a New Lease pursuant to subsection (f)(i) of this Section 17.1 , Landlord shall enter into such New Lease with the Permitted Leasehold Mortgagee whose mortgage is senior in lien, or with its Permitted Leasehold Mortgagee Designee acting for the benefit of such Permitted Leasehold Mortgagee prior in lien foreclosing on Tenant’s interest in this Master Lease. Landlord, without liability to Tenant or any Permitted Leasehold Mortgagee with an adverse claim, may rely upon a title insurance policy issued by a reputable title insurance company as the basis for determining the appropriate Permitted Leasehold Mortgagee who is entitled to such New Lease.

(h)       Permitted Leasehold Mortgagee Need Not Cure Specified Defaults . Nothing herein contained shall require any Permitted Leasehold Mortgagee as a condition to its exercise of the right hereunder to cure any default of Tenant not reasonably susceptible of being cured by such Permitted Leasehold Mortgagee or its Permitted Leasehold Mortgagee Designee (including but not limited to the default referred to in Section 16.1(a)(iii), (iv), (v), (vi), (vii) ( if the levy or attachment is in favor of such Permitted Leasehold Mortgagee (provided, such levy is extinguished upon foreclosure or similar proceeding or in a transfer in lieu of any such foreclosure) or is junior to the lien of such Permitted Leasehold Mortgagee and would be extinguished by the foreclosure of the Permitted Leasehold Mortgage that is held by such Permitted Leasehold Mortgagee) or (ix)  and any other sections of this Master Lease which may impose conditions of default not susceptible to being cured by a Permitted Leasehold Mortgagee or a subsequent owner of the Leasehold Estate through foreclosure hereof), in order to comply with the provisions of Sections 17.1(d) and 17.1(e) , or as a condition of entering into the New Lease provided for by Section 17.1(f) .

(i)       Contest of Event of Default . Notwithstanding anything to the contrary contained in this Master Lease, any Permitted Leasehold Mortgagee (and if more than one, the Permitted Leasehold Mortgagee whose lien is most senior) may, in good faith, contest through appropriate proceedings whether an alleged non-monetary default in fact constitutes an Event of Default, and the cure period available under the terms hereof to such Permitted Leasehold Mortgagee shall be extended so long as such Permitted Leasehold Mortgagee shall be diligently pursuing such contest, provided, that: (i) such Permitted Leasehold Mortgagee shall have commenced such contest prior to the expiration of the applicable notice and cure period herein for such alleged non-monetary Event of Default; (ii) Tenant shall not be, or shall not have, separately contested such alleged non-monetary Event of Default; (iii) pending the outcome of such contest, such Permitted Leasehold Mortgagee shall make payment of all Rent due and payable hereunder, as and when due and payable, and shall make payment and shall otherwise cure all non-monetary Events of Default which are not being contested by such Permitted Leasehold Mortgagee within applicable cure periods provided herein for such non-monetary Events of Default; and (iv) such Permitted Leasehold Mortgagee shall make payment to Landlord of all reasonable attorneys’ fees and costs incurred by Landlord in connection with such contest in the event that such Permitted Leasehold Mortgagee is not successful in such contest.

(j)       Casualty Loss . A standard mortgagee clause naming each Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof may be added to any and all insurance policies required to be

 

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carried by Tenant hereunder on condition that the insurance proceeds are to be applied in the manner specified in this Master Lease and the Permitted Leasehold Mortgage shall so provide; except that the Permitted Leasehold Mortgage may provide a manner for the disposition of such proceeds, if any, otherwise payable directly to Tenant (but not such proceeds, if any, payable jointly to Landlord and Tenant or to Landlord, to the Facility Mortgagee or to a third-party escrowee) pursuant to the provisions of this Master Lease.

(k)        Arbitration; Legal Proceedings . Landlord shall give prompt notice to each Permitted Leasehold Mortgagee (for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof) of any arbitration or legal proceedings between Landlord and Tenant involving obligations under this Master Lease.

(l)        No Merger . So long as any Permitted Leasehold Mortgage is in existence, unless all Permitted Leasehold Mortgagees for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof shall otherwise expressly consent in writing, the fee title to the Leased Property and the Leasehold Estate of Tenant therein created by this Master Lease shall not merge but shall remain separate and distinct, notwithstanding the acquisition of said fee title and said Leasehold Estate by Landlord or by Tenant or by a third party, by purchase or otherwise.

(m)        Notices . Notices from Landlord to the Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof shall be provided in the method provided in Section 35.1 hereof to the address or fax number furnished Landlord pursuant to subsection (b) of this Section 17.1 , and those from the Permitted Leasehold Mortgagee to Landlord shall be mailed to the address designated pursuant to the provisions of Section 35.1 hereof. Such notices, demands and requests shall be given in the manner described in this Section 17.1 and in Section 35.1 and shall in all respects be governed by the provisions of those sections.

(n)        Limitation of Liability . Notwithstanding any other provision hereof to the contrary, (i) Landlord agrees that any Permitted Leasehold Mortgagee’s liability to Landlord in its capacity as Permitted Leasehold Mortgagee hereunder howsoever arising shall be limited to and enforceable only against such Permitted Leasehold Mortgagee’s interest in the Leasehold Estate and the other collateral granted to such Permitted Leasehold Mortgagee to secure the obligations under its Debt Agreement, and (ii) each Permitted Leasehold Mortgagee agrees that Landlord’s liability to such Permitted Leasehold Mortgagee hereunder howsoever arising shall be limited to and enforceable only against Landlord’s interest in the Leased Property subject to the applicable Permitted Leasehold Mortgage, and no recourse against Landlord shall be had against any other assets of Landlord whatsoever.

(o)        Sale Procedure . If an Event of Default shall have occurred and be continuing, the Permitted Leasehold Mortgagee for which notice has been properly provided to Landlord pursuant to Section 17.1(b) hereof with the most senior lien on the Leasehold Estate shall have the right to make all determinations and agreements on behalf of Tenant under Article XXXVI (including, without limitation, requesting that the process described in Article XXXVI be commenced, the determination and agreement of the Tenant’s Property FMV and negotiation

 

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with Landlord with respect thereto), in each case, in accordance with and subject to the terms and provisions of Article XXXVI .

(p)      Third Party Beneficiary . Each Permitted Leasehold Mortgagee (for so long as such Permitted Leasehold Mortgagee holds a Permitted Leasehold Mortgage) is an intended third-party beneficiary of this Article XVII entitled to enforce the same as if a party to this Master Lease.

17.2     Landlord’s Right to Cure Tenant’s Default . If Tenant shall fail to make any payment or to perform any act required to be made or performed hereunder when due or within any cure period provided for herein, Landlord, without waiving or releasing any obligation or default, may, but shall be under no obligation to, make such payment or perform such act for the account and at the expense of Tenant, and may, to the extent permitted by law, enter upon the Leased Property for such purpose and take all such action thereon as, in Landlord’s opinion, may be necessary or appropriate therefor. No such entry shall be deemed an eviction of Tenant. All sums so paid by Landlord and all costs and expenses, including reasonable attorneys’ fees and expenses, so incurred, together with interest thereon at the Overdue Rate from the date on which such sums or expenses are paid or incurred by Landlord, shall be paid by Tenant to Landlord on demand as an Additional Charge.

17.3     Tenant’s Debt Agreements . Tenant agrees that each and any agreement related to Material Indebtedness and any Debt Agreement (or the principal or controlling agreement relating to such Material Indebtedness or series of related Debt Agreements) in each case entered into after the date hereof will include a provision requiring the lender or lenders thereunder (or the Representative of such lenders) to provide a copy to Landlord of any notices issued by such lenders or the Representative of such lenders to Tenant of a Specified Debt Agreement Default.

17.4     Landlord Cooperation . If, in connection with granting any Permitted Leasehold Mortgage or entering into a Debt Agreement, Tenant shall reasonably request reasonable cooperation from Landlord, Landlord shall provide the same at no cost or expense to Landlord, it being understood and agreed that Tenant shall be required to reimburse Landlord for all such costs and expenses so incurred by Landlord, including, but not limited to, its reasonable attorneys’ fees.

ARTICLE XVIII

SALE OF LEASED PROPERTY

18.1     Sale of the Leased Property . Landlord shall not sell or otherwise transfer all or any portion of the Leased Property (including by entering into a merger or similar transaction or by any Landlord Change of Control) during the Term to a Tenant Competitor without the prior written consent of Tenant, which consent may be given or withheld in Tenant’s sole discretion. Except as provided above and except as provided in the last sentence of this Section 18.1 , Landlord shall not be restricted from selling all or any portion of the Leased Property (including by entering into a merger or similar transaction or by any Landlord Change of Control). Any sale or other transfer by Landlord of all or any portion of the Leased Property shall be subject in each instance to all of the rights of Tenant under this Master Lease, and Landlord and Landlord’s

 

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successor or purchaser must comply with the provisions of Section 8.2 applicable to Landlord and, to the extent necessary, any purchaser or successor Landlord and/or other Related Person of purchaser or successor Landlord (or other Landlord Change of Control) must be approved by all applicable Gaming Authorities to ensure that there is not reasonably likely to be any material impact on the validity of any of the Gaming Licenses or the ability of Tenant to continue to use the Gaming Facilities for gaming activities in substantially the same manner as immediately prior to Landlord’s sale or other transfer.

ARTICLE XIX

HOLDING OVER

19.1     Holding Over . If Tenant shall for any reason remain in possession of the Leased Property of a Facility after the expiration or earlier termination of the Term without the consent, or other than at the request, of Landlord, such possession shall be as a month-to-month tenant during which time Tenant shall pay as Base Rent each month twice the monthly Base Rent applicable to the prior Lease Year for such Facility, together with all Percentage Rent and Additional Charges and all other sums payable by Tenant pursuant to this Master Lease. During such period of month-to-month tenancy, Tenant shall be obligated to perform and observe all of the terms, covenants and conditions of this Master Lease, but shall have no rights hereunder other than the right, to the extent given by law to month-to-month tenancies, to continue its occupancy and use of the Leased Property of, and/or any Tenant Capital Improvements to, such Facility. Nothing contained herein shall constitute the consent, express or implied, of Landlord to the holding over of Tenant after the expiration or earlier termination of this Master Lease.

ARTICLE XX

RISK OF LOSS

20.1     Risk of Loss . The risk of loss or of decrease in the enjoyment and beneficial use of the Leased Property as a consequence of the damage or destruction thereof by fire, the elements, casualties, thefts, riots, wars or otherwise, or in consequence of foreclosures, attachments, levies or executions (other than by Landlord and Persons claiming from, through or under Landlord) is assumed by Tenant, and except as otherwise provided herein no such event shall entitle Tenant to any abatement of Rent.

ARTICLE XXI

INDEMNIFICATION

21.1     General Indemnification . In addition to the other indemnities contained herein, and notwithstanding the existence of any insurance carried by or for the benefit of Landlord or Tenant, and without regard to the policy limits of any such insurance, Tenant shall protect, indemnify, save harmless and defend Landlord from and against all liabilities, obligations, claims, damages, penalties, causes of action, costs and expenses, including reasonable attorneys’, consultants’ and experts’ fees and expenses, imposed upon or incurred by or asserted against Landlord by reason of: (i) any accident, injury to or death of Persons or loss of or damage to

 

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property occurring on or about the Leased Property or adjoining sidewalks under the control of Tenant or any subtenant; (ii) any use, misuse, non-use, condition, maintenance or repair by Tenant or any subtenant of the Leased Property; (iii) any failure on the part of Tenant to perform or comply with any of the terms of this Master Lease; (iv) the non-performance of any of the terms and provisions of any and all existing and future subleases of the Leased Property to be performed by any party thereunder; (v) any claim for malpractice, negligence or misconduct committed by any Person on or working from the Leased Property; and (vi) the violation by Tenant or any subtenant of any Legal Requirement. Any amounts which become payable by Tenant to Landlord under this Article XXI shall be paid within ten (10) Business Days after receipt of Notice from Landlord requesting payment of the same, which notice may not be given until liability therefor has been determined by a final non appealable judgment or settlement or other agreement of the parties, and if not timely paid shall bear interest at the Overdue Rate from the date of such determination to the date of payment. Tenant, at its sole cost and expense, shall contest, resist and defend any such claim, action or proceeding asserted or instituted against Landlord. For purposes of this Article XXI , any acts or omissions of Tenant or any subtenant, or by their respective employees, agents, assignees, contractors, subcontractors or others acting for or on behalf of Tenant or any subtenant (whether or not they are negligent, intentional, willful or unlawful), shall be strictly attributable to Tenant.

ARTICLE XXII

SUBLETTING AND ASSIGNMENT

22.1     Subletting and Assignment . Tenant shall not, except as otherwise permitted pursuant to this Master Lease, without Landlord’s prior written consent, which shall not be unreasonably withheld, voluntarily or by operation of law assign (which term includes any transfer, sale, encumbering, pledge or other transfer or hypothecation and undergoing any Tenant Change of Control) this Master Lease or Tenant’s Leasehold Estate with respect to any Facility or sublet all or any portion of any Facility. Tenant acknowledges that Landlord is relying upon the expertise of Tenant in the operation of the Facilities and that Landlord entered into this Master Lease with the expectation that Tenant would remain in and operate such Facilities during the entire Term. Any Tenant Change of Control or transfer of any direct or indirect ownership interests in Tenant shall not constitute an assignment of Tenant’s interest in this Master Lease within the meaning of this Article XXII and shall not be prohibited, and the provisions requiring consent of Landlord contained herein shall not apply thereto, if and for so long as, Tenant remains wholly owned, directly or indirectly, by, or under common Control with, Tenant’s Parent.

22.2     Permitted Assignments . (a) Notwithstanding the foregoing, and subject to Section 40.1 , Tenant may, without Landlord’s prior written consent:

(i)         assign this Master Lease to a Discretionary Transferee in conjunction with a sale by Tenant of all or substantially all of Tenant’s assets relating to the Facilities; provided, that (1) such Discretionary Transferee becomes party to and bound by this Master Lease and agrees in writing to assume the obligations of Tenant under this Master Lease without amendment or modification other than as provided below; (2) the Parent Company of such Discretionary Transferee, if any, has become a Guarantor and provides

 

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a Guaranty; (3) the use of the Leased Property continues to comply with the requirements of this Master Lease; and (4) Landlord shall have received executed copies of all documents for such assignment;

(ii)        (x) assign this Master Lease by way of foreclosure of the Leasehold Estate or an assignment-in-lieu of foreclosure to any Person (any such foreclosure or assignment, a “ Foreclosure Assignment ”) or (y) undergo a Tenant Change of Control whereby a Person acquires beneficial ownership and control of one hundred percent (100%) of the Equity Interests in Tenant as a result of the purchase at a foreclosure of a permitted pledge of the Equity Interests in Tenant or an assignment in lieu of such foreclosure (a “ Foreclosure COC ”) or (z) effect the first subsequent sale or assignment of the Leasehold Estate or Tenant Change of Control after a Foreclosure Assignment or a Foreclosure COC whereby a Person so acquires the Leasehold Estate or beneficial ownership and control of one hundred percent (100%) of the Equity Interests in Tenant or the Person who acquired the Leasehold Estate in connection with the Foreclosure Assignment, in each case, effected by a Permitted Leasehold Mortgagee or a Permitted Leasehold Mortgagee Foreclosing Party, in each case if (1) such Person is a Discretionary Transferee, (2) such Discretionary Transferee agrees in writing to assume the obligations of Tenant under this Master Lease without amendment or modification other than as provided below (which written assumption may be made by a Subsidiary of a Permitted Leasehold Mortgagee or a Permitted Leasehold Mortgagee Designee after a Foreclosure Assignment or Foreclosure COC) and (3) except in the case of a Permitted Leasehold Mortgagee Foreclosing Party, the Parent Company of (x) Tenant (after giving effect to the transfer or assignment) or (y) the entity that succeeds to the assets of Tenant, if any, has become a Guarantor and provided a Guaranty or, if such Discretionary Transferee does not have a Parent Company and such Discretionary Transferee has not assumed the obligations of Tenant under this Master Lease, such Discretionary Transferee has become a Guarantor and provided a Guaranty;

(iii)       assign Tenant’s Leasehold Estate in this Master Lease with respect to one or more individual Facilities to a Discretionary Transferee; provided, that (1) such Discretionary Transferee enters into a Separate Lease in accordance with Section 1.5 mutatis mutandis ; (2) the Parent Company of such Discretionary Transferee, if any, has become a Guarantor and provided a Guaranty, (3) the use of each Facility continues to comply with the requirements of this Master Lease; (4) Landlord shall have received executed copies of all documents for such assignment; and (5) in no event shall Tenant during the Term of this Master Lease be permitted to assign its Leasehold Estate pursuant to this clause (iii) with respect to more than two (2) Facilities a material portion of which is a Gaming Facility and which are located in Las Vegas, Nevada (for the avoidance of doubt, there shall be no such restriction with respect to any Facilities that are not located in Las Vegas, Nevada or of which no material portion is or has been operated as a Gaming Facility);

(iv)       assign this Master Lease, or Tenant’s Leasehold Estate in this Master Lease with respect to all, but not less than all, of the Facilities, to Tenant’s Parent, a wholly-owned Subsidiary of Tenant’s Parent or a wholly-owned Subsidiary of Tenant; provided, (1) such assignee becomes party to and bound by this Master Lease and agrees

 

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in writing to assume the obligations of Tenant under this Master Lease without amendment or modification other than as provided below; (2) Tenant remains fully liable hereunder; (3) the use of the Leased Property continues to comply with the requirements of this Master Lease; and (4) Landlord shall have received executed copies of all documents for such assignment; and

(v)        pledge or mortgage its Leasehold Estate to a Permitted Leasehold Mortgagee and/or pledge the direct or indirect Equity Interests in Tenant to a Permitted Leasehold Mortgagee.

Upon the effectiveness of any assignment permitted pursuant to this Section 22.2 , such Discretionary Transferee or Permitted Leasehold Mortgagee Foreclosing Party (and, if applicable, its Parent Company) and Landlord shall make such amendments and other modifications to this Master Lease as are reasonably requested by either party to give effect to such assignment and such technical amendments as may be necessary or appropriate in the reasonable opinion of such requesting party in connection with such assignment. After giving effect to any such assignment, unless the context otherwise requires, references to Tenant and Tenant’s Parent hereunder shall be deemed to refer to the Discretionary Transferee (or Permitted Leasehold Mortgagee Foreclosing Party) or its Parent Company, as applicable.

22.3     Permitted Sublease Agreements . (a) Notwithstanding the provisions of Section 22.1 , but subject to compliance with the provisions of this Section 22.3 and of Section 40.1 , Tenant or any Operating Subtenant may, without Landlord’s prior written consent:

(i)         sublease the Leased Property or any Facility, or portion thereof to Tenant’s Parent, a wholly-owned Subsidiary of Tenant’s Parent or a wholly-owned Subsidiary of Tenant ;

(ii)        enter into, allow to continue or renew the Excluded Subleases;

(iii)       sublease any portion of any Facility (but not an entire Facility) to any Person; provided, that Tenant or any applicable Operating Subtenant retains and does not sublet a material portion of any such Facility; and

(iv)      sublet a Facility in order to comply with Section 8.2 hereof.

(b)       After an Event of Default has occurred and while it is continuing, Landlord may collect rents from any subtenant and apply the net amount collected to the Rent, but no such collection shall be deemed (i) a waiver by Landlord of any of the provisions of this Master Lease, (ii) the acceptance by Landlord of such subtenant as a tenant or (iii) a release of Tenant from the future performance of its obligations hereunder.

(c)       If reasonably requested by Tenant in connection with a sublease permitted under this Section 22.3 with a subtenant that is not an Affiliate of Tenant, Landlord and such sublessee shall enter into a nondisturbance and attornment agreement with respect to any sublease which is entered into by Tenant in good faith with a subtenant that is not an Affiliate of Tenant which will occupy space in a Facility, such non-disturbance and attornment agreement to be substantially in the form attached hereto as Exhibit F-1 (and if a Facility

 

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Mortgage is then in effect, Landlord shall use reasonable efforts to cause the Facility Mortgagee to enter into such non-disturbance and attornment agreement) whereby the subtenant agrees to attorn to Landlord (or a Facility Mortgagee) and Landlord (and the Facility Mortgagee) agree to recognize such subtenant rights under its sublease.

(d)        Tenant shall have the right, with the consent of Landlord, which consent shall not be unreasonably withheld, conditioned of delayed, to enter into subleases with terms, including extensions thereof, that exceed the then current Term or Renewal Term of this Master Lease or which assume the exercise of Tenant’s right to one or more Renewal Terms with subtenants which will occupy space primarily for the purpose of retail sales, food and beverage sales (including clubs and other uses customarily considered “food and beverage” in the hotel industry) or race and gaming operations which are not material to the Primary Intended Use (such as, but not limited to, a sports book) in a Facility and any such sublease shall be subject to the foregoing provisions of Section 22.3(c) regarding a non-disturbance and attornment agreement. Landlord’s withholding of consent to any of the foregoing shall be deemed unreasonable if such sublease is on commercially reasonable terms at the time in question taking into consideration, among other things, the identity of the sublessee, the extent of sublessee’s investment in the subleased space, the term of such sublease and Landlord’s interest in the applicable Facility (including the resulting impact on Landlord’s ability to lease such Facility on commercially reasonably terms after the Term of this Master Lease).

22.4     Required Assignment and Subletting Provisions . Any assignment and/or sublease must provide that:

(i)         in the case of a sublease, it shall be subject and subordinate to all of the terms and conditions of this Master Lease;

(ii)       the use of the applicable Facility (or portion thereof) shall not conflict with any Legal Requirement or any other provision of this Master Lease and any restrictions on Tenant’s activities at the relevant Facility shall also similarly apply to any sublessee’s activities at the relevant Facility;

(iii)     except as otherwise provided herein, no subtenant or assignee shall be permitted to further sublet all or any part of the applicable Facility or assign this Master Lease or its sublease except insofar as the same would be permitted if it were a sublease by Tenant under this Master Lease (it being understood that any subtenant may pledge and mortgage its subleasehold estate (or allow the pledge of its Equity Interests) to a Permitted Leasehold Mortgagee);

(iv)     in the case of a sublease, in the event of cancellation or termination of this Master Lease for any reason whatsoever or of the surrender of this Master Lease (whether voluntary, involuntary or by operation of law) prior to the expiration date of such sublease, including extensions and renewals granted thereunder, then, at Landlord’s option, the subtenant shall make full and complete attornment to Landlord for the balance of the term of the sublease, which the subtenant shall execute and deliver within thirty (30) days after request by Landlord and the subtenant shall waive the provisions of any law now or hereafter in effect which may give the subtenant any right of election to

 

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terminate the sublease or to surrender possession in the event any proceeding is brought by Landlord to terminate this Master Lease; and

(v)       in the event the subtenant receives a Notice from Landlord stating that this Master Lease has been cancelled, surrendered or terminated, then, the subtenant shall thereafter be obligated to pay all rentals accruing under said sublease directly to Landlord (or as Landlord shall so direct); all rentals received from the subtenant by Landlord shall be credited against the amounts owing by Tenant under this Master Lease.

22.5     Costs . Tenant shall reimburse Landlord for Landlord’s reasonable costs and expenses incurred in conjunction with the processing and documentation of any assignment or subletting, including reasonable attorneys’, architects’, engineers’ or other consultants’ fees whether or not such sublease or assignment agreement is actually consummated.

22.6     No Release of Tenant’s Obligations; Exception . No assignment (other than a permitted transfer pursuant to this Article XXII , in connection with a sale or assignment of the entire Leasehold Estate), subletting or management agreement shall relieve Tenant of its obligation to pay the Rent and to perform all of the other obligations to be performed by Tenant hereunder or reduce any such obligations. All obligations and other terms of this Master Lease applicable to Tenant and Tenant’s activities and properties shall also apply to each assignee of this Master Lease. The liability of Tenant and any immediate and remote successor in interest of Tenant (by assignment or otherwise), and the due performance of the obligations of this Master Lease on Tenant’s part to be performed or observed, shall not in any way be discharged, released or impaired by any (i) stipulation which extends the time within which an obligation under this Master Lease is to be performed, (ii) waiver of the performance of an obligation required under this Master Lease that is not entered into for the benefit of Tenant or such successor, or (iii) failure to enforce any of the obligations set forth in this Master Lease, provided, that Tenant shall not be responsible for any additional obligations or liability arising as the result of any modification or amendment of this Master Lease by Landlord and any assignee of Tenant that is not an Affiliate of Tenant. Notwithstanding the foregoing, in the event of an assignment permitted under Section 22.2(a)(iii) , Landlord will agree, with respect only to those Facilities so assigned, to release Tenant and Guarantor from their respective obligations under this Master Lease and any Guaranty, provided; that the assignment is to a Discretionary Transferee and the Parent Company of the Discretionary Transferee, if any, executes a Guaranty as required by Section 22.2(a)(iii) . As a condition precedent to Landlord’s release of Tenant and/or Guarantor, the successor guarantor shall execute and deliver a Guaranty in substantially the same form and substance as the Guaranty being released and Landlord and such Discretionary Transferee, as the successor tenant, shall execute a new master lease with respect to the assigned Facilities in substantially the same form and substance as this Master Lease as provided in Section 1.5 mutatis mutandis .

22.7     Separate Lease; Rent Allocated . If reasonably requested by Tenant in connection with an assignment of Tenant’s Leasehold Estate with respect to one or more Facilities permitted under Section  22.2(a)(iii) , Landlord will agree to enter into a replacement master lease with respect to the relevant Facility(ies) with the assignee thereof in form and substance substantially identical to this Master Lease, with Rent equal to (or, if applicable, apportioned between such new master lease and this Master Lease based on) the Allocable Rent

 

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Amount and to remove such Leased Property from this Master Lease, all in accordance with the procedure set forth in Section 1.5 mutatis mutandis . In such case, the Parent Company of the Discretionary Transferee, if any, shall deliver a Guaranty to Landlord with respect to all obligations under the Separate Lease, and Tenant and Guarantor shall have no further obligations under this Master Lease or the Guaranty with respect to the applicable Facility(ies).

22.8     Management Agreements . Nothing contained herein shall prohibit or restrict Tenant’s ability to enter into management agreements or similar arrangements with third parties so long as the same are limited in duration to the Term, as may be extended or terminated pursuant to the provisions of this Master Lease and do not relate to the entirety of any Facility.

ARTICLE XXIII

REPORTING; CONFIDENTIALITY

23.1     Officer’s Certificates and Financial Statements .

(a)         Officer’s Certificate . Each of Landlord and Tenant shall, at any time and from time to time, but no more frequently than once per Lease Year, upon receipt of not less than ten (10) Business Days’ prior written request from the other party hereto, furnish an Officer’s Certificate certifying (i) that this Master Lease is unmodified and in full force and effect, or that this Master Lease is in full force and effect as modified and setting forth the modifications; (ii) the Rent and Additional Charges payable hereunder and the dates to which the Rent and Additional Charges payable have been paid; (iii) that the address for notices to be sent to the party furnishing such Officer’s Certificate is as set forth in this Master Lease (or, if such address for notices has changed, the correct address for notices to such party); (iv) whether or not, to its actual knowledge, such party or the other party hereto is in default in the performance of any covenant, agreement or condition contained in this Master Lease (together with back-up calculation and information reasonably necessary to support such determination) and, if so, specifying each such default of which such party may have knowledge; (v) that Tenant is in possession of the Leased Property; and (vi) responses to such other questions or statements of fact as such other party, any ground or underlying landlord, any purchaser or any current or prospective Facility Mortgagee or Permitted Leasehold Mortgagee shall reasonably request. Landlord’s or Tenant’s failure to deliver such statement within such time shall constitute an acknowledgement by such failing party that, to such party’s knowledge, (x) this Master Lease is unmodified and in full force and effect except as may be represented to the contrary by the other party; (y) the other party is not in default in the performance of any covenant, agreement or condition contained in this Master Lease; and (z) the other matters set forth in such request, if any, are true and correct. Any such certificate furnished pursuant to this Article XXIII may be relied upon by the receiving party and any current or prospective Facility Mortgagee, Permitted Leasehold Mortgagee, ground or underlying landlord or purchaser of the Leased Property.

(b)         Statements . Tenant shall furnish the following statements to Landlord:

(i)        On the earlier of (x) each date specified in the Exchange Act and the SEC’s related rules and regulations (including any additional time permitted under

 

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Rule 12b-25 or any successor provision thereof) that the Tenant’s Parent is (or would be, if not required to file SEC Reports at that time) required to file SEC Reports (each a “ SEC Filing Deadline ”) and (y) the date the Tenant’s Parent files its SEC Reports with the SEC: (A) Tenant’s Parent’s Financial Statements required to be included in such SEC Report or the SEC Report containing such Financial Statements; (B) a certificate, executed by a Responsible Officer of the Tenant’s Parent certifying that no default has occurred under this Master Lease or, if such a default has occurred, specifying the nature and status of such default; and (C) (1) with respect to annual Financial Statements, a report with respect to Tenant’s Parent’s Financial Statements from Tenant’s Parent’s independent registered public accounting firm, which report shall not be subject to any qualification or exception expressing substantial doubt about the ability of the Tenant’s Parent and its Subsidiaries to continue as a “going concern” or any exception as to the scope of such audit (excluding any qualification as to going concern relating to any debt maturities in the twelve month period following the date such report is delivered or any projected financial performance or covenant default in any Indebtedness or this Master Lease in such twelve month period) and that the examination by Tenant’s Parent’s accountants in connection with such Financial Statements has been made in accordance with generally accepted auditing standards as at such date or (2) with respect to quarterly Financial Statements, a certificate, executed by a Responsible Officer of the Tenant’s Parent, certifying that such Financial Statements fairly present, in all material respects, the financial position and results of operations of Tenant’s Parent and its Subsidiaries on a consolidated basis in accordance with GAAP as at such date and for such period (subject to normal year-end audit adjustments, the absence of footnotes and other informational disclosures customarily omitted from interim financial statements);

(ii)       Within ninety (90) days after the end of each of the Tenant’s Fiscal Years (commencing with the Fiscal Year ending December 31, 2016), (a) a budget and projection by fiscal quarter for that Fiscal Year and by Fiscal Year for the Fiscal Year in which such materials are furnished and the next two succeeding Fiscal Years, including projected Net Revenue and EBITDA with respect to each Facility and (b) a capital and operating budget for each Facility for the Fiscal Year in which such materials are furnished;

(iii)     (a) Such additional financial information and projections as may be reasonably requested by Landlord in connection with syndications, private placements or public offerings by MGM REIT the Operating Partnership or Landlord of debt securities or loans or equity or hybrid securities and (b) such additional information and unaudited quarterly financial information concerning the Leased Property and Tenant as Landlord, the Operating Partnership or MGM REIT may require for its ongoing filings with the SEC under both the Securities Act and the Exchange Act, including, but not limited to SEC Reports and registration statements to be filed by Landlord, Operating Partnership or MGM REIT during the Term of this Master Lease, the Internal Revenue Service (including in respect of MGM REIT’s qualification as a “real estate investment trust” (within the meaning of Section 856(a) of the Code)) and any other federal, state or local regulatory agency with jurisdiction over MGM REIT or its Subsidiaries subject to Section 23.1(c) below); provided , however , that if the SEC requires Landlord, Operating Partnership or MGM REIT to include Tenant’s Parent’s Financial Statements in its SEC Reports, Tenant shall use its commercially reasonable efforts to furnish substantially complete drafts of Tenant’s Parent’s Financial Statements for such reporting period

 

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to Landlord no later than five (5) calendar days prior to the applicable SEC Filing Deadline for the filing of such SEC Reports;

(iv)       Prompt Notice to Landlord of any action, proposal or investigation by any agency or entity, or complaint to such agency or entity, (any of which is called a “ Proceeding ”), known to Tenant, the result of which Proceeding would reasonably be expected to be to revoke or suspend or terminate or modify in a way adverse to Tenant, or fail to renew or fully continue in effect, any license or certificate or operating authority pursuant to which Tenant or any Operating Subtenant carries on any part of the Primary Intended Use of all or any portion of the Leased Property;

(v)        Tenant further agrees to provide the financial and operational reports to be delivered to Landlord under this Master Lease in such electronic format(s) as may reasonably be required by Landlord from time to time in order to (i) facilitate Landlord’s internal financial and reporting database and (ii) permit Landlord to calculate any rent, fee or other payments due under Ground Leases. Tenant also agrees that Landlord shall have audit rights with respect to such information to the extent required to confirm Tenant’s compliance with the Master Lease terms (including, without limitation, calculation of Net Revenues).

(c)       Notwithstanding the foregoing provisions of Section 23.1 , Tenant shall not be obligated (1) to provide information that is subject to (i) a bona fide confidentiality agreement, (ii) the quality assurance immunity, (iii) attorney-client privilege or the attorney work product doctrine or (iv) in the case of Section 23.1(b)(v) only, creates an unreasonably excessive expense or burden on Tenant or any of its Subsidiaries to produce or otherwise disclose or (2) to provide information or assistance that could give Landlord or its Affiliates a “competitive” advantage with respect to markets in which Landlord or any of Landlord’s Affiliates and Tenant, Tenant’s Parent or any of Tenant’s Affiliates might be competing at any time (“ Restricted Information ”) it being understood that Restricted Information shall not include revenue and expense information relevant to Landlord’s calculation and verification of (i) the Escalation amount and Percentage Rent hereunder and (ii) Tenant’s compliance with Section 23.3 hereof, provided, that the foregoing information shall be provided on a portfolio-wide (as opposed to Facility-by-Facility) basis, except where required by Landlord to be able to make submissions to, or otherwise to comply with requirements of, gaming and other regulatory authorities, in which case such additional information (including Facility-by-Facility performance information) will be provided by Tenant to Landlord to the extent so required (provided, that Landlord shall in such instance first execute a nondisclosure agreement in a form reasonably satisfactory to Tenant with respect to such information. Landlord shall retain audit rights with respect to Restricted Information to the extent required to confirm Tenant’s compliance with the Master Lease terms (and Landlord’s or its Affiliates compliance with SEC, Internal Revenue Service and other legal and regulatory requirements) and provided, that appropriate measures are in place to ensure that only Landlord’s auditors and attorneys (and not Landlord or any of Landlord’s other Affiliates) are provided access to such information). In addition, Landlord shall not disclose any Restricted Information to any Person or any employee, officer or director of any Person (other than Landlord or a Subsidiary of Landlord) that directly or indirectly owns or operates any gaming business or is a Tenant Competitor.

 

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23.2     Confidentiality; Public Offering Information .

(a)        The parties recognize and acknowledge that they may receive certain Confidential Information of the other party. Each party agrees that neither such party nor any of its Representatives acting on its behalf shall, during or within five (5) years after the termination or expiration of this Master Lease, directly or indirectly use any Confidential Information of the other party or disclose Confidential Information of the other party to any person for any reason or purpose whatsoever, except as reasonably required in order to comply with the obligations and otherwise as permitted under the provisions of this Master Lease. Notwithstanding the foregoing, in the event that a party or any of its Representatives is requested or becomes legally compelled (pursuant to any legal, governmental, administrative or regulatory order, authority or process) to disclose any Confidential Information of the other party, it will, to the extent reasonably practicable and not prohibited by law, provide the party to whom such Confidential Information belongs prompt Notice of the existence, terms or circumstances of such event so that the party to whom such Confidential Information belongs may seek a protective order or other appropriate remedy or waive compliance with the provisions of this Section 23.2(a) . In the event that such protective order or other remedy is not obtained or the party to whom such Confidential Information belongs waives compliance with this Section 23.2(a) , the party compelled to disclose such Confidential Information will furnish only that portion of the Confidential Information or take only such action as, based upon the advice of your legal counsel, is legally required and will use commercially reasonable efforts to obtain reliable assurance that confidential treatment will be accorded any Confidential Information so furnished. The party compelled to disclose the Confidential Information shall cooperate with any action reasonably requested by the party to whom such Confidential Information belongs to obtain a protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.

(b)        Notwithstanding anything to the contrary in Section 23.2(a) , Tenant specifically agrees that Landlord may include financial information and such information concerning the operation of the Facilities (1) which is approved by Tenant in its sole discretion, (2) which is publicly available, (3) the Adjusted Revenue to Rent Ratio of the Tenant Parties, or (4) the inclusion of which is approved by Tenant in writing, which approval may not be unreasonably withheld, in offering memoranda or prospectuses or confidential information memoranda, or similar publications or marketing materials, rating agency presentations, investor presentations or disclosure documents in connection with syndications, private placements or public offerings of MGM REIT’s or Landlord’s securities or loans or securities or loans of any direct or indirect parent entity of Landlord, and any other reporting requirements under applicable federal and state laws, including those of any successor to Landlord, provided, that, with respect to matters permitted to be disclosed solely under clauses (1) and (4), the recipients thereof shall be obligated to maintain the confidentiality thereof pursuant to Section 23.2(a) or pursuant to confidentiality provisions substantially similar thereto and to comply with all federal, state and other securities laws applicable with respect to such information. Unless otherwise agreed by Tenant, neither Landlord nor Operating Partnership nor MGM REIT shall revise or change the wording of information previously publicly disclosed by Tenant and furnished to Landlord, Operating Partnership or MGM REIT or any direct or indirect parent entity of Landlord pursuant to Section 23.1 or this Section 23.2 and Landlord’s Form 10-Q or Form 10-K (or supplemental report filed in connection therewith) shall not disclose the operational results of

 

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the Facilities prior to Tenant’s Parent’s, Tenant’s or its Affiliate’s public disclosure thereof so long as Tenant’s Parent, Tenant or such Affiliate reports such information in a timely manner consistent with historical practices and SEC disclosure requirements. Tenant agrees to provide such other reasonable information and, if necessary, reasonable participation in road shows and other presentations at Landlord’s or MGM REIT’s sole cost and expense, with respect to Tenant and its Leased Property to facilitate a public or private debt or equity offering or syndication by Landlord or MGM REIT or any direct or indirect parent entity of Landlord or MGM REIT or to satisfy MGM REIT’s or Landlord’s SEC disclosure requirements or the disclosure requirements of any direct or indirect parent entity of Landlord or MGM REIT. In this regard, Landlord shall provide to Tenant a copy of any information prepared by Landlord to be published, and Tenant shall have a reasonable period of time (not to exceed three (3) Business Days) after receipt of such information to notify Landlord of any corrections.

(c)        Except as provided in clause (a) or (b) above, nothing herein shall permit the disclosure of Confidential Information regarding Tenant, Tenant’s Parent or their Affiliates to any Tenant Competitor.

23.3     Financial Covenants . Tenant’s Parent on a consolidated basis with Tenant shall maintain a ratio of EBITDA (plus, without duplication, any rent expense associated with any ground leases pursuant to which Tenant’s Parent or any of its Subsidiaries leases real property, and Rent under this Master Lease (as may be amended from time to time)) to Rent determined on the last day of any fiscal quarter on a cumulative basis for the preceding Test Period (commencing with the Test Period ending on December 31, 2016) of at least 1.1:1. In the event that Tenant’s interest in this Master Lease is assigned, the foregoing financial covenant shall apply on a consolidated basis to such successor Tenant and any parent entity(ies) of any successor Tenant that has provided a Guaranty.

23.4     Landlord Obligations . Landlord acknowledges and agrees that certain of the information contained in the Financial Statements or any other information provided by Tenant may be non-public financial or operational information with respect to Tenant and/or the Leased Property. Landlord further agrees (i) to maintain the confidentiality of such non-public information; provided, however, that notwithstanding the foregoing and notwithstanding anything to the contrary in Section 23.2(a) hereof or otherwise herein, Landlord shall have the right to share such information with MGM REIT and Operating Partnership and their respective officers, employees, directors, Facility Mortgagee, agents and lenders party to material debt instruments entered into by MGM REIT, Operating Partnership or Landlord, actual or prospective arrangers, underwriters, investors or lenders with respect to Indebtedness or Equity Interests that may be issued by MGM REIT, Operating Partnership or Landlord, rating agencies, accountants, attorneys and other consultants (the “ Landlord Representatives ”), provided, that (x) such Landlord Representative is advised of the confidential nature of such information and agrees, to the extent such information is not publicly available, to maintain the confidentiality thereof pursuant to Section 23.2(a) or pursuant to confidentiality provisions substantially similar thereto (or in accordance with the standard syndication process or customary market standards for dissemination of such type of information, including “click through” or other affirmative actions on the part of the recipient to receive such information) and to comply with all federal, state and other securities laws applicable with respect to such information and (y) such information shall not be disclosed to any Tenant Competitor and (ii) that neither it nor any

 

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Landlord Representative shall be permitted to engage in any transactions with respect to the stock or other equity or debt securities or syndicated loans of Tenant or Tenant’s Parent based on any such non-public information provided by or on behalf of Landlord, Operating Partnership or MGM REIT (provided, that this provision shall not govern the provision of information by Tenant or Tenant’s Parent). In addition to the foregoing, Landlord agrees that, upon request of Tenant, it shall from time to time provide such information as may be reasonably requested by Tenant with respect to Landlord’s capital structure and/or any financing secured by this Master Lease or the Leased Property in connection with Tenant’s review of the treatment of this Master Lease under GAAP. In connection therewith, Tenant agrees to maintain the confidentiality of any such non-public information; provided, however, Tenant shall have the right to share such information with Tenant’s Parent and their respective officers, employees, directors, Permitted Leasehold Mortgagees, agents and lenders party to material debt instruments entered into by Tenant or Tenant’s Parent, actual or prospective arrangers, underwriters, investors or lenders with respect to Indebtedness or Equity Interests that may be issued by Tenant or Tenant’s Parent, rating agencies, accountants, attorneys and other consultants (the “ Tenant Representatives ”) so long as such Tenant Representative is advised of the confidential nature of such information and agrees, to the extent such information is not publicly available, (i) to maintain the confidentiality thereof pursuant to Section 23.2(a) or pursuant to confidentiality provisions substantially similar thereto (or in accordance with the standard syndication process or customary market standards for dissemination of such type of information, including “click through” or other affirmative actions on the part of the recipient to receive such information) and to comply with all federal, state and other securities laws applicable with respect to such information and (ii) not to engage in any transactions with respect to the stock or other equity or debt securities or syndicated loans of MGM REIT, Operating Partnership or Landlord based on any such non-public information provided by or on behalf of Tenant or Tenant’s Parent (provided, that this provision shall not govern the provision of information by Landlord, Operating Partnership or MGM REIT).

ARTICLE XXIV

LANDLORD’S RIGHT TO INSPECT

24.1     Landlord’s Right to Inspect . Subject to any restrictions imposed by any Gaming Regulations or Gaming Authorities, upon reasonable advance notice to Tenant, Tenant shall permit Landlord and its authorized representatives to inspect its Leased Property during usual business hours. Landlord shall take care to minimize disturbance of the operations on the Leased Property, except in the case of emergency. Landlord shall indemnify and hold Tenant harmless from and against any claims, losses, costs or expenses arising as a result of Landlord’s or its representative’s entry onto the Leased Property.

ARTICLE XXV

NO WAIVER

25.1     No Waiver . No delay, omission or failure by Landlord or Tenant to insist upon the strict performance of any term hereof or to exercise any right, power or remedy hereunder and no acceptance of full or partial payment of Rent during the continuance of any default or Event of Default shall impair any such right or constitute a waiver of any such breach or of any

 

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such term. No waiver of any breach shall affect or alter this Master Lease, which shall continue in full force and effect with respect to any other then existing or subsequent breach.

ARTICLE XXVI

REMEDIES CUMULATIVE

26.1     Remedies Cumulative . Unless otherwise provided herein and to the extent permitted by law, each legal, equitable or contractual right, power and remedy of Landlord now or hereafter provided either in this Master Lease or by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power and remedy and the exercise or beginning of the exercise by Landlord of any one or more of such rights, powers and remedies shall not preclude the simultaneous or subsequent exercise by Landlord of any or all of such other rights, powers and remedies.

ARTICLE XXVII

ACCEPTANCE OF SURRENDER

27.1     Acceptance of Surrender . No surrender to Landlord of this Master Lease or of any Leased Property or any part thereof, or of any interest therein, shall be valid or effective unless agreed to and accepted in writing by Landlord, and no act by Landlord or any representative or agent of Landlord, other than such a written acceptance by Landlord, shall constitute an acceptance of any such surrender.

ARTICLE XXVIII

NO MERGER

28.1     No Merger . There shall be no merger of this Master Lease or of the Leasehold Estate created hereby by reason of the fact that the same Person may acquire, own or hold, directly or indirectly, (i) this Master Lease or the Leasehold Estate created hereby or any interest in this Master Lease or such Leasehold Estate and (ii) the fee estate in the Leased Property.

ARTICLE XXIX

CONVEYANCE BY LANDLORD

29.1     Conveyance by Landlord . If Landlord or any successor owner of the Leased Property shall convey the Leased Property in accordance with Section 18.1 and the other terms of this Master Lease other than as security for a debt, and the grantee or transferee expressly assumes all obligations of Landlord arising after the date of the conveyance, Landlord or such successor owner, as the case may be, shall thereupon be released from all future liabilities and obligations of Landlord under this Master Lease arising or accruing from and after the date of such conveyance or other transfer and all such future liabilities and obligations shall thereupon be binding upon the new owner.

 

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ARTICLE XXX

QUIET ENJOYMENT

30.1     Quiet Enjoyment . So long as Tenant shall pay the Rent as the same becomes due and shall fully comply with all of the terms of this Master Lease and fully perform its obligations hereunder, Tenant shall peaceably and quietly have, hold and enjoy the Leased Property for the Term, free of any claim or other action by Landlord or anyone claiming by, through or under Landlord, but subject to all liens and encumbrances of record as of the Commencement Date or specifically provided for in this Master Lease or consented to by Tenant in writing. No failure by Landlord to comply with the foregoing covenant shall give Tenant any right to cancel or terminate this Master Lease or abate, reduce or make a deduction from or offset against the Rent or any other sum payable under this Master Lease, or to fail to perform any other obligation of Tenant hereunder. Notwithstanding the foregoing, Tenant shall have the right, by separate and independent action to pursue any claim it may have against Landlord as a result of a breach by Landlord of the covenant of quiet enjoyment contained in this Article XXX .

ARTICLE XXXI

LANDLORD’S FINANCING

31.1     Landlord’s Financing . Without the consent of Tenant, Landlord may from time to time, directly or indirectly, create or otherwise cause to exist any Facility Mortgage upon the Leased Property or any portion thereof or interest therein. This Master Lease is and at all times shall be subject and subordinate to any such Facility Mortgage which may now or hereafter affect the Leased Property or any portion thereof or interest therein and to all renewals, modifications, consolidations, replacements, restatements and extensions thereof or any parts or portions thereof; provided, however, that the subjection and subordination of this Master Lease and Tenant’s leasehold interest hereunder to any Facility Mortgage or any Foreclosure Purchaser (as defined below) shall be conditioned upon the execution by the holder of each Facility Mortgage and delivery to Tenant of a subordination, nondisturbance and attornment agreement substantially in the form attached hereto as Exhibit F-2 and with respect to any Facility Mortgage on any vessel or barge, Landlord shall be required to deliver such subordination, nondisturbance and attornment agreement to Tenant from each holder of a Facility Mortgage on such vessel or barge prior to the recording or registration of such Facility Mortgage on such vessel or barge in a manner that would, or the enforcement of remedies thereunder would, affect or disturb the rights of Tenant under this Master Lease or the provisions of Article XVII which benefit any Permitted Leasehold Mortgagee, in the case of any Permitted Leasehold Mortgagee; provided, that upon the request of Landlord, such subordination, nondisturbance and attornment agreement shall be executed by Tenant as well as Landlord and be in substantially the form attached hereto as Exhibit F-2 . Each such subordination, nondisturbance and attornment agreement shall bind such holder of such Facility Mortgage and its successors and assigns as well as any person who acquires any portion of the Leased Property by assignment or in a foreclosure or similar proceeding or in a transfer in lieu of any such foreclosure or a successor owner of the Leased Property as well as their respective successors and assigns (each, a “ Foreclosure Purchaser ”) and which shall provide that the holder of such Facility Mortgage,

 

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and any Foreclosure Purchaser shall not disturb Tenant’s leasehold interest or possession of the Leased Property in accordance with the terms hereof, or any of Tenant’s rights, privileges and options, and shall give effect to this Master Lease, including the provisions of Article XVII which benefit any Permitted Leasehold Mortgagee (as if such Facility Mortgagee or Foreclosure Purchaser were the landlord under this Master Lease (it being understood that if an Event of Default has occurred and is continuing at such time such parties shall be subject to the terms and provisions hereof concerning the exercise of rights and remedies upon such Event of Default including the provisions of Articles XVI and XXXVI )). In connection with the foregoing and at the request of Landlord, Tenant shall promptly execute a subordination, nondisturbance and attornment agreement, in form and substance substantially in the form of Exhibit F-2 or otherwise reasonably satisfactory to Tenant, and the Facility Mortgagee or prospective Facility Mortgagee, as the case may be, which will incorporate the terms set forth in the preceding sentence. Except for the documents described in the preceding sentences, this provision shall be self-operative and no further instrument of subordination shall be required to give it full force and effect. If, in connection with obtaining any Facility Mortgage for the Leased Property or any portion thereof or interest therein, a Facility Mortgagee or prospective Facility Mortgagee shall request reasonable cooperation from Tenant, Tenant shall provide the same at no cost or expense to Tenant, it being understood and agreed that Landlord shall be required to reimburse Tenant for all such costs and expenses so incurred by Tenant, including, but not limited to, its reasonable attorneys’ fees.

31.2     Attornment . If Landlord’s interest in the Leased Property or any portion thereof or interest therein is sold, conveyed or terminated upon the exercise of any remedy provided for in any Facility Mortgage Documents (or in lieu of such exercise), or otherwise by operation of law: (a) at the request and option of the new owner or superior lessor, as the case may be, Tenant shall attorn to and recognize the new owner or superior lessor as Tenant’s “landlord” under this Master Lease or enter into a new lease substantially in the form of this Master Lease with the new owner or superior lessor, and Tenant shall take such actions to confirm the foregoing within ten (10) Business Days after request; and (b) the new owner or superior lessor shall not be (i) liable for any act or omission of Landlord under this Master Lease occurring prior to such sale, conveyance or termination; (ii) subject to any offset, abatement or reduction of rent because of any default of Landlord under this Master Lease occurring prior to such sale, conveyance or termination; (iii) bound by any previous material modification or amendment to this Master Lease or any previous prepayment of more than one month’s rent, unless such material modification, amendment or prepayment shall have been approved in writing by such Facility Mortgagee (to the extent such approval was required at the time of such amendment or modification or prepayment under the terms of the applicable Facility Mortgage Documents) or, in the case of such prepayment, such prepayment of rent has actually been delivered to such new owner or superior lessor or in either case, such modification, amendment or prepayment occurred before Landlord provided Tenant with notice of the Facility Mortgage and the identity and address of the Facility Mortgagee; or (iv) liable for any security deposit or other collateral deposited or delivered to Landlord pursuant to this Master Lease unless such security deposit or other collateral has actually been delivered to such new owner or superior lessor. Notwithstanding the foregoing, nothing contained in the preceding sentence shall lessen or affect the obligation of the then current Landlord pursuant to Section 10.3 hereof.

 

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ARTICLE XXXII

HAZARDOUS SUBSTANCES

32.1     Hazardous Substances . Tenant shall not allow any Hazardous Substance to be located in, on, under or about the Leased Property or incorporated in any Facility; provided, however, that Hazardous Substances may be brought, kept, used or disposed of in, on or about the Leased Property in quantities and for purposes similar to those brought, kept, used or disposed of in, on or about similar facilities used for purposes similar to the Primary Intended Use or in connection with the construction of facilities similar to the applicable Facility or to the extent in existence at any Facility and which are brought, kept, used and disposed of in strict compliance with Legal Requirements. Tenant shall not allow the Leased Property to be used as a waste disposal site or for the manufacturing, handling, storage, distribution or disposal of any Hazardous Substance other than in the ordinary course of the business conducted at the Leased Property and in compliance with applicable Legal Requirements.

32.2     Notices . Tenant shall provide to Landlord, within five (5) Business Days after Tenant’s receipt thereof, a copy of any notice, or notification with respect to, (i) any violation of a Legal Requirement relating to Hazardous Substances located in, on, or under the Leased Property or any adjacent property; (ii) any enforcement or other governmental or regulatory action instituted, completed or threatened with respect to the Leased Property; (iii) any claim made or threatened by any Person against Tenant or the Leased Property relating to damage, contribution, cost recovery, compensation, loss, or injury resulting from or claimed to result from any Hazardous Substance; and (iv) any reports made to any federal, state or local environmental agency arising out of or in connection with the release of any Hazardous Substance in, on, under or removed from the Leased Property, including any complaints, notices, warnings or assertions of violations in connection therewith.

32.3     Remediation . If Tenant becomes aware of a violation of any Legal Requirement relating to any Hazardous Substance in, on, under or about the Leased Property or any adjacent property, or if Tenant, Landlord or the Leased Property becomes subject to any order of any federal, state or local agency to repair, close, detoxify, decontaminate or otherwise remediate Hazardous Substance in, on, under or about the Leased Property, Tenant shall immediately notify Landlord of such event and, at its sole cost and expense, cure such violation or effect such repair, closure, detoxification, decontamination or other remediation. If Tenant fails to implement and diligently pursue any such cure, repair, closure, detoxification, decontamination or other remediation, Landlord shall have the right, but not the obligation, to carry out such action and to recover from Tenant all of Landlord’s costs and expenses incurred in connection therewith.

32.4     Indemnity . Tenant shall indemnify, defend, protect, save, hold harmless, and reimburse Landlord for, from and against any and all costs, losses (including, losses of use or economic benefit or diminution in value), liabilities, damages, assessments, lawsuits, deficiencies, demands, claims and expenses (collectively, “ Environmental Costs ”) (whether or not arising out of third-party claims and regardless of whether liability without fault is imposed, or sought to be imposed, on Landlord) incurred in connection with, arising out of or resulting from, directly or indirectly, the following, but only to the extent such occurs before or during (but not after) the Term and is not caused solely by the actions of Landlord: (i) the production,

 

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use, generation, storage, treatment, transporting, disposal, discharge, release or other handling or disposition of any Hazardous Substances from, in, on or about the Leased Property (collectively, “ Handling ”), including the effects of such Handling of any Hazardous Substances on any Person or property within or outside the boundaries of the Leased Property, (ii) the presence of any Hazardous Substances in, on, under or about the Leased Property and (iii) the violation of any Environmental Law. “Environmental Costs” include interest, costs of response, removal, remedial action, containment, cleanup, investigation, design, engineering and construction, damages (including actual and consequential damages) for personal injuries and for injury to, destruction of or loss of property or natural resources, relocation or replacement costs, penalties, fines, charges or expenses, attorney’s fees, expert fees, consultation fees, and court costs, and all amounts paid in investigating, defending or settling any of the foregoing.

Without limiting the scope or generality of the foregoing, Tenant expressly agrees that, in the event of a breach by Tenant in its obligations under this Section 32.4 that is not cured within any applicable cure period, Tenant shall reimburse Landlord for any and all reasonable costs and expenses incurred by Landlord in connection with, arising out of, resulting from or incident to, directly or indirectly, before (with respect to any period of time in which Tenant or its Affiliate was in possession and control of the applicable Leased Property) or during (but not after) the Term or such portion thereof during which the Leased Property is leased to Tenant of the following:

(a)         in investigating any and all matters relating to the Handling of any Hazardous Substances, in, on, from, under or about the Leased Property;

(b)        in bringing the Leased Property into compliance with all Legal Requirements; and

(c)        in removing, treating, storing, transporting, cleaning-up and/or disposing of any Hazardous Substances used, stored, generated, released or disposed of in, on, from, under or about the Leased Property or off-site other than in the ordinary course of the business conducted at the Leased Property and in compliance with applicable Legal Requirements.

If any claim is made by Landlord for reimbursement for Environmental Costs incurred by it hereunder, Tenant agrees to pay such claim promptly, and in any event to pay such claim within sixty (60) calendar days after receipt by Tenant of Notice thereof and any amount not so paid within such sixty (60) calendar day period shall bear interest at the Overdue Rate from the date due to the date paid in full.

32.5     Environmental Inspections . In the event Landlord has a reasonable basis to believe that Tenant is in breach of its obligations under this Article XXXII , Landlord shall have the right, from time to time, during normal business hours and upon not less than five (5) days’ Notice to Tenant, except in the case of an emergency in which event no notice shall be required, to conduct an inspection of the Leased Property to determine the existence or presence of Hazardous Substances on or about the Leased Property. Landlord shall have the right to enter and inspect the Leased Property, conduct any testing, sampling and analyses it deems necessary and shall have the right to inspect materials brought into the Leased Property. Landlord may, in its discretion, retain such experts to conduct the inspection, perform the tests referred to herein,

 

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and to prepare a written report in connection therewith. All reasonable costs and expenses incurred by Landlord under this Section 32.5 shall be paid on demand as Additional Charges by Tenant to Landlord. Failure to conduct an environmental inspection or to detect unfavorable conditions if such inspection is conducted shall in no fashion be intended as a release of any liability for environmental conditions subsequently determined to be associated with or to have occurred during Tenant’s tenancy. Tenant shall remain liable for any environmental condition related to or having occurred during its tenancy regardless of when such conditions are discovered and regardless of whether or not Landlord conducts an environmental inspection at the termination of this Master Lease. The obligations set forth in this Article XXXII shall survive the expiration or earlier termination of this Master Lease.

ARTICLE XXXIII

MEMORANDUM OF LEASE

33.1       Memorandum of Lease . Landlord and Tenant shall enter into one or more short form memoranda of this Master Lease, in the form attached hereto as Exhibit G . Tenant shall pay all costs and expenses of recording any such memorandum and shall fully cooperate with Landlord in removing from record any such memorandum upon the expiration or earlier termination of the Term with respect to the applicable Facility .

ARTICLE XXXIV

APPOINTING EXPERTS

34.1       Expert Dispute Resolution Process .

(a)     In the event that the opinion of “Experts” is required under this Master Lease, Landlord and Tenant shall negotiate in good faith for no longer than ten (10) Business Days to appoint a single Expert. If Landlord and Tenant have not been able to reach agreement on such Person after such ten (10) Business Days of good faith negotiations, then Landlord and Tenant shall each within ten (10) Business Days after either party notifying the other of the need to appoint Experts and the subject matter of the dispute, appoint an Expert and Landlord’s and Tenant’s Experts shall, within ten (10) Business Days of their appointment, jointly appoint a third Expert (such three Experts, or such single Expert agreed upon by Landlord and Tenant, as applicable, shall be referred to herein as the “ Experts ”). The three Experts so appointed, if applicable, shall make all decisions by majority vote of such Experts. If the two Experts so appointed are unable to appoint a third Expert within such ten (10) Business Day period, then either Landlord or Tenant may ask any court of competent jurisdiction to appoint the third Expert. If either Landlord or Tenant fails to timely appoint an Expert, the Expert appointed by the other party shall be the sole Expert in determining the relevant matter. Each Expert appointed hereunder shall have at least ten (10) years of experience valuing commercial real estate and/or in leasing or with respect to the matters to be determined, as applicable with respect to any of the matters to be determined by the Experts.

 

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(b)      Once the Expert or Experts are selected, either by agreement of the parties or by selection of separate Experts followed by the appointment of a third Expert, the Experts will determine the matter in question, by proceeding as follows:

(i)       In the case of Experts required for the purposes of the definition of Allocable Rent Amount, Landlord and Tenant shall submit to the Experts their respective determinations of the relative fair value of each Facility in accordance with GAAP. The Experts will determine which determination of relative fair value most closely approximates the relative fair value of such Facility and may not select any other amount or make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties within thirty (30) days of the submission of the matter to the Experts in writing of their decision as the conclusive determination of relative fair value.

(ii)      In the case of Experts required for the purpose of Section 10.3 , Landlord and Tenant shall submit to the Experts the Tenant FMV Notice and the Landlord FMV Notice. The Experts may only select either the Deconsolidation Growth Capital Improvement Purchase Price set forth in the Tenant FMV Notice or the Landlord FMV Notice and may not select any other amount or make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties within thirty (30) days of the submission of the matter to the Experts in writing of their selection of either the Tenant FMV Notice or the Landlord FMV Notice as the conclusive determination of the Deconsolidation Growth Capital Improvement Purchase Price. In the event that the Landlord FMV Notice identifies any disagreement regarding which Capital Improvements constitute Deconsolidation Growth Capital Improvements, the Experts shall, within thirty (30) days of submission of the matter to the Experts select either the Landlord FMV Notice or the Tenant FMV Notice as the conclusive determination of the identity of all Deconsolidation Growth Capital Improvements. The party whose notice was not so selected may then amend the Deconsolidation Growth Capital Improvement Purchase Price set forth in such party’s Landlord FMV Notice or Tenant FMV Notice, as applicable, within ten (10) Business Days thereof and the Experts shall within ten (10) Business Days after receipt of such amended Landlord FMV Notice or Tenant FMV Notice, select either the Landlord FMV Notice or Tenant FMV Notice (as so revised, as applicable) as the conclusive determination of the Deconsolidation Growth Capital Improvement Purchase Price in accordance with the foregoing procedure.

(iii)     In the case of Experts required for the purposes of Section 3.5 hereof, Landlord and Tenant shall submit to the Experts their respective determinations of Fair Market Rent of each Appraiser. The Experts will determine which determination of Fair Market Rent most closely approximates Fair Market Rent and may not select any other amount or make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties within thirty (30) days of the submission of the matter to the Experts in writing of their decision as the conclusive determination of Fair Market Rent.

(iv)     In the case of Experts required for the purposes of Section 5.1 hereof, Landlord and Tenant shall submit to the Experts their respective determinations of the allocation of Title Insurance Proceeds. The Experts will determine which determination of such allocation is most appropriate and may not select any other allocation or make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties within thirty (30) days of

 

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the submission of the matter to the Experts in writing of their decision as the conclusive determination of the allocation of Title Insurance Proceeds.

(v)      In the case of Experts required for the purpose of Section 14.2(b) or (c) , Landlord and Tenant shall submit to the Experts their respective determinations for fair market value of the relevant Facility. The Experts may only select either the fair market value set forth by Landlord or by Tenant and may not select any other amount or make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties in writing within thirty (30) days of the submission of the matter to the Experts of their selection of either Tenant’s or Landlord’s determination of fair market value as the conclusive determination of the fair market value.

(vi)     In the case of Experts required for the purpose of Section 14.2(g) , Landlord and Tenant shall submit to the Experts their respective determinations of the amount of the relevant Casualty Shortfall. The Experts may only select either the amount of the Casualty Shortfall set forth by Landlord or by Tenant and may not select any other amount or make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties in writing within thirty (30) days of the submission of the matter to the Experts of their selection of either Tenant’s or Landlord’s determination of the amount of the Casualty Shortfall as the conclusive determination of the Casualty Shortfall .

(vii)     In the case of Experts required for the purpose of Section 14.3 , Landlord and Tenant shall submit to the Experts their respective determinations of pro forma Net Revenue of the relevant Facility. The Experts may only select either the pro forma Net Revenue set forth by Landlord or by Tenant and may not select any other amount or make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties in writing within thirty (30) days of the submission of the matter to the Experts of their selection of either Tenant’s or Landlord’s determination of such pro forma Net Revenue as the conclusive determination of such pro forma Net Revenue.

(viii)   In the case of Experts required for the purpose of Section 15.1 , Landlord and Tenant shall submit to the Experts their respective determinations of the percentage of a Facility taken by Condemnation and/or the fair market value of the relevant Facility. The Experts may only select either the percentage of a Facility and/or the fair market value set forth by Landlord or Tenant and may not select any other amount or make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties in writing within thirty (30) days of the submission of the matter to the Experts of their selection of either Tenant’s or Landlord’s determination of the percentage of a Facility and/or the fair market value as the conclusive determination of such percentage and/or fair market value.

(ix)    In the case of Experts required for the purpose of Section 15.1(c) , Landlord and Tenant shall submit to the Experts their respective determinations of the relative values of the property taken by Condemnation and the portion of the affected Facility remaining subject to the Master Lease. The Experts may only select either such relative values set forth by Landlord or Tenant and may not select any other amount or make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties in writing within thirty (30) days of the submission of the matter to the Experts of their selection of either Tenant’s or

 

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Landlord’s determination of such relative values as the conclusive determination of such relative values.

(x)      In the case of Experts required for the purpose of Section 16.1 , Landlord and Tenant shall submit to the Experts their respective written descriptions of the events giving rise to Landlord’s belief that an Event of Default exists. The Experts may only determine whether or not the Event of Default alleged by Landlord has occurred and may not make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties in writing within thirty (30) days of the submission of the matter to the Experts of their determination as to whether or not such an Event of Default has occurred as the conclusive determination such matter.

(xi)     In the case of Experts required for the purpose of Section 36.1 , Landlord and Tenant shall submit to the Experts their respective determinations of the Tenant’s Property FMV. The Experts may only select either the Tenant’s Property FMV set forth by Landlord or Tenant and may not select any other amount or make any other determination (and the Experts shall be so instructed). The Experts shall notify the parties in writing within thirty (30) days of the submission of the matter to the Experts of their determination of the Tenant’s Property FMV as the conclusive determination of such matter.

(c)      In each case, the Experts will make the relevant determination by a “baseball arbitration” proceeding with the Experts limited to awarding only one or the other of the two positions submitted (and not any position in between or other compromise or ruling not consistent with one of the two positions submitted), which shall then be final and binding on the parties and not subject to appeal or court review. Either party may seek an order of a court of competent jurisdiction to enforce such determination. The Experts, in their sole discretion, shall consider any and all materials that they deem relevant, except that there shall be no live hearings and the parties shall not be permitted to take discovery. The Experts may submit written questions or information requests to the parties, and the parties may respond with written materials within a time frame set by the Experts to allow the Experts to make the relevant determination in the time allowed pursuant to this Section 34.1 .

(d)      All communications between a party and the Experts shall also be copied to the other party. The parties shall cooperate in good faith to facilitate the valuation or other determination by the Experts.

(e)      Each of Landlord and Tenant shall pay the cost of the Expert appointed by it. The costs of the third Expert engaged with respect to any issue under Section 34.1 of this Master Lease shall be borne by the party against whom the Experts rule on such issue. If Landlord pays such Expert and is the prevailing party, such costs shall be Additional Charges hereunder and if Tenant pays such Expert and is the prevailing party, such costs shall be a credit against the next Rent payment hereunder.

 

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ARTICLE XXXV

NOTICES

35.1     Notices . Any notice, request or other communication to be given by any party hereunder shall be in writing and shall be sent by registered or certified mail, postage prepaid and return receipt requested, by hand delivery or nationally recognized express courier service to the following address:

 

  To Tenant:   

MGM Lessee, LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

Attention: Corporate Legal

 

With a copy to:

(that shall not

constitute notice)

  

Weil, Gotshal & Manges, LLP

767 Fifth Avenue

New York, NY 10153

Attention: Michael Aiello

                  W. Michael Bond

Email: michael.aiello@weil.com

             michael.bond@weil.com

  To Landlord:   

MGP Lessor, LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

Attention: Corporate Legal

 

And with copy to

(which shall not

constitute notice):

  

Weil, Gotshal & Manges, LLP

767 Fifth Avenue

New York, NY 10153

Attention: Michael Aiello

                  W. Michael Bond

Email: michael.aiello@weil.com

             michael.bond@weil.com

or to such other address as either party may hereafter designate. Notice shall be deemed to have been given on the date of delivery if such delivery is made on a Business Day, or if not, on the first Business Day after delivery. If delivery is refused, Notice shall be deemed to have been given on the date delivery was first attempted. A confirmatory copy of any such notice shall also be sent by email.

 

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ARTICLE XXXVI

TRANSITION UPON EXPIRATION OR TERMINATION

36.1     Transfer of Tenant’s Assets at the Facilities . Upon the written notice (an “ End of Term Asset Transfer Notice ”) of (i) upon expiration or earlier termination of the Term, Landlord or (ii) upon expiration of the Term at the end of the fourth (4th) Renewal Term, Tenant, in each case at least six months prior to the expiration (or, if applicable, within ten (10) days following the earlier termination) of the Term, in the case of clause (i), Landlord may require that Tenant sell, or, in the case of clause (ii), Tenant may require that Landlord buy, as applicable, all tangible personal property constituting Tenant’s Property (including Gaming Equipment and hotel furniture, fixtures and equipment, but excluding, for the avoidance of doubt, Tenant’s business operations, Tenant’s Intellectual Property, Gaming Licenses, Excluded Assets, customer lists and other proprietary information used by Tenant in connection with its business operations and any Tenant Capital Improvements) for consideration to be received by Tenant (or its Subsidiaries) from Landlord in an amount equal to the fair market value of such Tenant’s Property (the “ Tenant’s Property FMV ”). Within ten (10) Business Days of Landlord’s delivery or receipt of an End of Term Asset Transfer Notice, Landlord shall notify Tenant in writing of Landlord’s good faith determination of the Tenant’s Property FMV. If Tenant disagrees with Landlord’s determination of the Tenant’s Property FMV, Tenant shall, within ten (10) Business Days of receipt of Landlord’s determination, notify Landlord in writing of Tenant’s determination of Tenant’s Property FMV. Landlord and Tenant shall negotiate in good faith to agree upon the Tenant’s Property FMV for an additional thirty (30) day period and if Landlord and Tenant are unable to agree during such 30 day period, the Tenant’s Property FMV will be determined by Experts in accordance with Section 34.1 . Following the determination of the Tenant’s Property FMV, Landlord shall, on the later of ten (10) Business Days following such determination and the expiration of the Term, pay to Tenant or Tenant’s designee an amount equal to the Tenant’s Property FMV and Tenant shall sell, transfer and assign (subject to compliance with any applicable Gaming Regulations) all of Tenant’s right, title and interest in such Tenant’s Property to Landlord or Landlord’s designee free and clear of any liens or encumbrances but on an “as-is” basis with no representations or warranties whatsoever. For the avoidance of doubt, it shall be a condition precedent to Tenant’s obligation to transfer any of Tenant’s Property pursuant to this Article XXXVI that the transferee shall comply with all Legal Requirements, including any Gaming Regulations with respect to the ownership of such property.

ARTICLE XXXVII

ATTORNEY’S FEES

37.1     Attorneys’ Fees . If Landlord or Tenant brings an action or other proceeding against the other to enforce or interpret any of the terms, covenants or conditions hereof or any instrument executed pursuant to this Master Lease, or by reason of any breach or default hereunder or thereunder, the party prevailing in any such action or proceeding and any appeal thereupon shall be paid all of its costs and reasonable outside attorneys’ fees incurred therein. In addition to the foregoing and other provisions of this Master Lease that specifically require Tenant to reimburse, pay or indemnify against Landlord’s attorneys’ fees, Tenant shall pay, as

 

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Additional Charges, all of Landlord’s reasonable outside attorneys’ fees incurred in connection with the enforcement of this Master Lease (except to the extent provided above), including reasonable attorneys’ fees incurred in connection with the review, negotiation or documentation of any subletting, assignment, or management arrangement or any consent requested in connection therewith, and the collection of past due Rent.

ARTICLE XXXVIII

BROKERS

38.1     Brokers. Tenant warrants that it has not had any contact or dealings with any Person or real estate broker which would give rise to the payment of any fee or brokerage commission in connection with this Master Lease, and Tenant shall indemnify, protect, hold harmless and defend Landlord from and against any liability with respect to any fee or brokerage commission arising out of any act or omission of Tenant. Landlord warrants that it has not had any contact or dealings with any Person or real estate broker which would give rise to the payment of any fee or brokerage commission in connection with this Master Lease, and Landlord shall indemnify, protect, hold harmless and defend Tenant from and against any liability with respect to any fee or brokerage commission arising out of any act or omission of Landlord.

ARTICLE XXXIX

OFAC

39.1     Anti-Terrorism Representations .

(a)    Landlord and Tenant each hereby represent and warrant that neither they, nor, to the their knowledge, MGM REIT or Tenant’s Parent, as applicable, is (i) in material violation of any sanctions program that is established by Executive Order of the President or published by the Office of Foreign Assets Control, U.S. Department of the Treasury (“ OFAC ”); (ii) in material violation of the Trading with the Enemy Act, 50 U.S.C. App. § 5, the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-06, the Patriot Act, Public Law 107-56, Executive Order 13224 (September 23, 2001) or any Executive Order of the President issued pursuant to such statutes; or (iii) named on the following list that is published by OFAC: “List of Specially Designated Nationals and Blocked Persons” (collectively, “ Prohibited Persons ”).

(b)    Neither Landlord nor Tenant will, during the Term of this Master Lease, knowingly engage in any transactions or dealings, or knowingly be otherwise associated with, any Prohibited Persons in connection with the ownership, or use or occupancy of, the Leased Property, as applicable. A breach of the representations (being untrue at any time during the Term) or covenants contained in this Section 39.1 by Landlord or Tenant as a result of which the other party suffers actual damages shall constitute a material breach of this Master Lease and shall entitle the other party to any and all remedies available hereunder, or at law or in equity.

 

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ARTICLE XL

REIT REQUIREMENTS

40.1     REIT Protection . (a) The parties hereto intend that Rent and other amounts paid by Tenant hereunder will qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto and this Master Lease shall be interpreted consistent with this intent.

(b)      Anything contained in this Master Lease to the contrary notwithstanding, Tenant shall not without Landlord’s advance written consent (which consent shall not be unreasonably withheld) (i) except with respect to the Identified Subleases, sublet, assign or enter into a management arrangement for the Leased Property on any basis such that the rental or other amounts to be paid by the subtenant, assignee or manager thereunder would be based, in whole or in part, on either (x) the income or profits derived by the business activities of the subtenant, assignee or manager or (y) any other formula such that any portion of any amount received by Landlord would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto; (ii) sublet, assign or enter into a management arrangement for the Leased Property to or with any Person (other than a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code) of MGM REIT) in which MGM REIT owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5) of the Code); or (iii) sublet, assign or enter into a management arrangement for the Leased Property in any other manner which could cause any portion of the amounts received by Landlord pursuant to this Master Lease or any sublease to fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Code, or any similar or successor provision thereto, or which could cause any other income of Landlord to fail to qualify as income described in Section 856(c)(2) of the Code. The requirements of this Section 40.1(b) shall likewise apply to any further subleasing by any subtenant.

(c)      Anything contained in this Master Lease to the contrary notwithstanding, the parties acknowledge and agree that Landlord, in its sole discretion, may assign this Master Lease or any interest herein to another Person (including without limitation, a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code)) in order to maintain MGM REIT’s status as a “real estate investment trust” (within the meaning of Section 856(a) of the Code); provided, however, Landlord shall be required to (i) comply with any applicable legal requirements related to such transfer and (ii) give Tenant notice of any such assignment; and provided, further, that any such assignment shall be subject to all of the rights of Tenant hereunder.

(d)      Anything contained in this Master Lease to the contrary notwithstanding, upon request of Landlord, Tenant shall cooperate with Landlord in good faith and at no cost or expense to Tenant, and provide such documentation and/or information as may be in Tenant’s possession or under Tenant’s control and otherwise readily available to Tenant as shall be reasonably requested by Landlord in connection with verification of MGM REIT’s “real estate investment trust” (within the meaning of Section 856(a) of the Code) compliance requirements. Anything contained in this Master Lease to the contrary notwithstanding, Tenant shall take such reasonable action as may be requested by Landlord from time to time in order to

 

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ensure compliance with the Internal Revenue Service requirement that Rent allocable for purposes of Section 856 of the Code to personal property, if any, at the beginning and end of a calendar year does not exceed fifteen percent (15%) of the total Rent due hereunder as long as such compliance does not (i) increase Tenant’s monetary obligations under this Master Lease or (ii) materially and adversely increase Tenant’s nonmonetary obligations under this Master Lease or (iii) materially diminish Tenant’s rights under this Master Lease.

ARTICLE XLI

MISCELLANEOUS

41.1     Survival . Anything contained in this Master Lease to the contrary notwithstanding, all claims against, and liabilities and indemnities of Tenant or Landlord arising prior to the expiration or earlier termination of the Term shall survive such expiration or termination.

41.2     Severability . If any term or provision of this Master Lease or any application thereof shall be held invalid or unenforceable, the remainder of this Master Lease and any other application of such term or provision shall not be affected thereby.

41.3     Non-Recourse . Tenant specifically agrees to look solely to the Leased Property for recovery of any judgment from Landlord (and Landlord’s liability hereunder shall be limited solely to its interest in the Leased Property, and no recourse under or in respect of this Master Lease shall be had against any other assets of Landlord whatsoever). It is specifically agreed that no constituent partner in Landlord or officer or employee of Landlord shall ever be personally liable for any such judgment or for the payment of any monetary obligation to Tenant. The provision contained in the foregoing sentence is not intended to, and shall not, limit any right that Tenant might otherwise have to obtain injunctive relief against Landlord, or any action not involving the personal liability of Landlord. Furthermore, except as otherwise expressly provided herein, in no event shall Landlord ever be liable to Tenant for any indirect or consequential damages suffered by Tenant from whatever cause. Neither Landlord nor Tenant shall be liable to the other, nor shall either make any claim against the other, for punitive damages.

41.4     Successors and Assigns . This Master Lease shall be binding upon Landlord and its successors and assigns and, subject to the provisions of Article XXII , upon Tenant and its successors and assigns.

41.5     Governing Law . THIS MASTER LEASE WAS NEGOTIATED IN THE STATE OF NEW YORK, WHICH STATE THE PARTIES AGREE HAS A SUBSTANTIAL RELATIONSHIP TO THE PARTIES AND TO THE UNDERLYING TRANSACTION EMBODIED HEREBY. ACCORDINGLY, IN ALL RESPECTS THIS MASTER LEASE (AND ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) SHALL BE GOVERNED BY, AND CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO PRINCIPLES OR CONFLICTS OF LAW) AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA, EXCEPT THAT ALL PROVISIONS HEREOF RELATING

 

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TO THE CREATION OF THE LEASEHOLD ESTATE AND ALL REMEDIES SET FORTH IN ARTICLE XVI RELATING TO RECOVERY OF POSSESSION OF THE LEASED PROPERTY OF ANY FACILITY (SUCH AS AN ACTION FOR UNLAWFUL DETAINER, IN REM ACTION OR OTHER SIMILAR ACTION) SHALL BE CONSTRUED AND ENFORCED ACCORDING TO, AND GOVERNED BY, THE LAWS OF THE STATE IN WHICH THE LEASED PROPERTY IS LOCATED.

41.6     Waiver of Trial by Jury . EACH OF LANDLORD AND TENANT ACKNOWLEDGES THAT IT HAS HAD THE ADVICE OF COUNSEL OF ITS CHOICE WITH RESPECT TO ITS RIGHTS TO TRIAL BY JURY UNDER THE CONSTITUTION OF THE UNITED STATES AND THE STATE. EACH OF LANDLORD AND TENANT HEREBY EXPRESSLY WAIVES ANY RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION (i) ARISING UNDER THIS MASTER LEASE (OR ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) OR (ii) IN ANY MANNER CONNECTED WITH OR RELATED OR INCIDENTAL TO THE DEALINGS OF LANDLORD AND TENANT WITH RESPECT TO THIS MASTER LEASE (OR ANY AGREEMENT FORMED PURSUANT TO THE TERMS HEREOF) OR ANY OTHER INSTRUMENT, DOCUMENT OR AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH, OR THE TRANSACTIONS RELATED HERETO OR THERETO, IN EACH CASE WHETHER NOW EXISTING OR HEREINAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT OR TORT OR OTHERWISE; EACH OF LANDLORD AND TENANT HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY A COURT TRIAL WITHOUT A JURY, AND THAT EITHER PARTY MAY FILE A COPY OF THIS SECTION WITH ANY COURT AS CONCLUSIVE EVIDENCE OF THE CONSENT OF EACH SUCH PARTY TO THE WAIVER OF ITS RIGHT TO TRIAL BY JURY.

41.7     Entire Agreement . This Master Lease and the Exhibits and Schedules hereto constitute the entire and final agreement of the parties with respect to the subject matter hereof, and may not be changed or modified except by an agreement in writing signed by the parties and, with respect to the provisions set forth in Section 40.1 , no such change or modification shall be effective without the explicit reference to such section by number and paragraph. Landlord and Tenant hereby agree that all prior or contemporaneous oral understandings, agreements or negotiations relative to the leasing of the Leased Property are merged into and revoked by this Master Lease.

41.8     Headings; Consent . All titles and headings to sections, subsections, paragraphs or other divisions of this Master Lease are only for the convenience of the parties and shall not be construed to have any effect or meaning with respect to the other contents of such sections, subsections, paragraphs or other divisions, such other content being controlling as to the agreement among the parties hereto. When the consent of any party hereunder may not be unreasonably withheld, such consent also may not be unreasonably conditioned or delayed.

41.9     Counterparts . This Master Lease may be executed in any number of counterparts, each of which shall be a valid and binding original, but all of which together shall constitute one and the same instrument.

 

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41.10     Interpretation . Both Landlord and Tenant have been represented by counsel and this Master Lease and every provision hereof has been freely and fairly negotiated. Consequently, all provisions of this Master Lease shall be interpreted according to their fair meaning and shall not be strictly construed against any party.

41.11     Time of Essence . TIME IS OF THE ESSENCE OF THIS MASTER LEASE AND EACH PROVISION HEREOF IN WHICH TIME OF PERFORMANCE IS ESTABLISHED.

41.12      Further Assurances . The parties agree to promptly sign all documents reasonably requested to give effect to the provisions of this Master Lease.

41.13      Gaming Regulations . (a) Notwithstanding anything to the contrary in this Master Lease, this Master Lease and any agreement formed pursuant to the terms hereof are subject to the Gaming Regulations and the laws involving the sale, distribution and possession of alcoholic beverages (the “ Liquor Laws ”). Without limiting the foregoing, Landlord, and its respective Related Persons, successors and assigns acknowledges that (i) it is subject to being called forward by the Gaming Authority or governmental authority enforcing the Liquor Laws (the “ Liquor Authority ”), in each of their discretion, for licensing or a finding of suitability or to file or provide other information, and (ii) all rights, remedies and powers under this Master Lease and any agreement formed pursuant to the terms hereof, including with respect to the entry into and ownership and operation of the Gaming Facilities, and Landlord’s right to possession or control of Gaming Equipment, alcoholic beverages or a Gaming License or liquor license, may be exercised only to the extent that the exercise thereof does not violate any applicable provisions of the Gaming Regulations and Liquor Laws and only to the extent that required approvals (including prior approvals) are obtained from the requisite Gaming Authority and/or Liquor Authority.

(b)      Notwithstanding anything to the contrary in this Master Lease or any agreement formed pursuant to the terms hereof, each of Tenant, Landlord, and each of Tenant’s or Landlord’s successors and assigns agrees to cooperate with each Gaming Authority and each Liquor Authority in connection with the administration of their regulatory jurisdiction over the parties hereto and/or the Facilities, including, without limitation, the provision of such documents or other information as may be requested by any such Gaming Authorities and/or Liquor Authorities relating to Tenant, Landlord, Tenant’s or Landlord’s successors and assigns or to this Master Lease or any agreement formed pursuant to the terms hereof.

41.14     Certain Provisions of Nevada Law . To the extent a Facility is located in Nevada, Landlord shall, pursuant to Section 108.2405(1)(b) of the Nevada Revised Statutes (“ NRS ”), record a written notice of waiver of Landlord’s rights set forth in NRS 108.234 with the office of the recorder of Clark County, Nevada before the commencement of construction of any work of improvement with respect to such Facility. Pursuant to NRS 108.2405(2), Landlord shall serve such notice by certified mail, return receipt requested, upon the prime contractor of such work of improvement and all other lien claimants who may give the owner a notice of right to lien pursuant to NRS 108.245, within ten (10) days after Landlord’s receipt of a notice of right to lien or ten (10) days after the date on which the notice of waiver is recorded. Without limiting Tenant’s obligations with respect to Liens under this Master Lease, Tenant, upon the written

 

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request of Landlord, shall fully bond or give such other security as may be reasonably required by Landlord to insure ultimate payment of any Lien filed against any portion of the Leased Property as a result of this Section 41.14 and to prevent any sale or forfeiture of the Leased Property or any Capital Improvement thereto or the Rent by reason of any such Lien.

41.15      Sale/Leaseback Accounting . Landlord and Tenant agree to enter into any modifications to this Master Lease or such other agreements reasonably necessary, in the opinion of a “Big Four” accounting firm, to achieve “sale/leaseback accounting treatment” for Tenant; provided, that such modifications do not materially increase either party’s obligations, or materially diminish either parties rights, under the Master Lease or affect the other party’s tax or accounting treatment of the transactions contemplated by this Master Lease.

SIGNATURES ON FOLLOWING PAGE

 

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IN WITNESS WHEREOF , this Master Lease has been executed by Landlord and Tenant as of the date first written above.

 

LANDLORD:

MGP Lessor, LLC
By:  

/s/ John M. McManus

  Name: John M. McManus
  Title:   Secretary
TENANT :
MGM Lessee, LLC
By:      

/s/ John M. McManus

  Name: John M. McManus
  Title:   Secretary

 

S-1

EXHIBIT A

LIST OF FACILITIES

 

Name of Facility

 

 

   Address of Facility
Excalibur Hotel and Casino   

3850 and 3858 Las Vegas Blvd. South, Las Vegas, Clark County, NV

 

Gold Strike Hotel and Casino   

1010 Casino Center Drive, Robinsonville, Tunica County, Mississippi

 

Luxor Hotel and Casino   

3900 Las Vegas Blvd. South, Las Vegas, Clark County, NV

 

Mandalay Bay Hotel and Casino (including

Mandalay Place)

  

3950 (and 3930) Las Vegas Blvd. South, Las Vegas, Clark County, NV

 

MGM Grand Detroit Hotel and Casino   

1777 Third Street, Detroit, Wayne County, Michigan

 

Mirage Hotel and Casino   

3400 Las Vegas Blvd. South, Las Vegas, Clark County, NV

 

Monte Carlo Hotel and Casino   

3770 Las Vegas Blvd. South, Las Vegas, Clark County, NV

 

New York-New York Hotel and Casino   

3790 Las Vegas Blvd. South, Las Vegas, Clark County, NV

 

The Park   

3778 Las Vegas Blvd. South, Las Vegas, Clark County, NV

 

Beau Rivage   

875 Beach Boulevard, Biloxi, Harrison County, MS 39530

 

 

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EXHIBIT B

LEGAL DESCRIPTIONS

Legal Descriptions Part I - Fee

Excalibur Hotel and Casino - 3850 and 3858 Las Vegas Blvd. South, Las Vegas, NV

A PORTION OF PARCEL 1 AS SHOWN IN THAT CERTAIN FINAL MAP TITLED “MANDALAY MILE NORTH, A COMMERCIAL SUBDIVISION”, RECORDED IN BOOK 110, PAGE 46 OF PLATS, TOGETHER WITH A PORTION OF TROPICANA AVENUE AS DESCRIBED BY THAT CERTAIN QUIT CLAIM DEED, RECORDED FEBRUARY 2, 2006 IN BOOK 20060222, INSTRUMENT NO. 01362, ALSO TOGETHER WITH A PORTION OF LAS VEGAS BOULEVARD AS DESCRIBED BY THAT CERTAIN RESOLUTION OF ABANDONMENT OF A PORTION OF HIGHWAY RIGHT-OF-WAY, RECORDED FEBRUARY 2, 2006 IN BOOK 20060222, INSTRUMENT NO. 01365 ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, LYING WITHIN A PORTION OF THE NORTH HALF (N 1/2) OF THE NORTHEAST QUARTER (NE 1/4) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHEAST CORNER OF THE NORTH HALF (N 1/2) OF THE NORTHEAST QUARTER (NE 1/4) OF SAID SECTION 29; THENCE ALONG SAID SOUTH LINE SOUTH 89°37’43” WEST, 150.00 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY OF LAS VEGAS BOULEVARD AND BEING A POINT ON THE EASTERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY AND EASTERLY LOT LINE, NORTH 00°20’10” WEST, 30.00 FEET TO THE POINT OF BEGINNING ; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY AND EASTERLY LOT LINE, SOUTH 89°37’43” WEST, 59.95 FEET; THENCE SOUTH 87°13’43” WEST, 194.12 FEET’ THENCE NORTH 88°10’36” WEST, 212.25 FEET; THENCE SOUTH 89°37’43” WEST, 1575.54 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY OF INTERSTATE 15, BEING A POINT ON THE WESTERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID EASTERLY RIGHT-OF-WAY AND WESTERLY LOT LINE THE FOLLOWING TEN (10) COURSES: 1) NORTH 00°09’20” EAST, 391.81 FEET; 2) NORTH 05°17’21” EAST, 283.71 FEET; 3) NORTH 12°24’04” EAST, 88.56 FEET; 4) NORTH 17°52’21” EAST, 152.42 FEET TO A POINT HEREIN AFTER REFERRED TO AS POINT “A” AND BEING THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 424.00 FEET, FROM WHICH BEGINNING THE RADIUS BEARS NORTH 01°30’50” WEST; 5) NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 32°17’50”, AN ARC LENGTH OF 239.01 FEET; 6) NORTH 56°11’20” EAST, 85.91 FEET; 7) SOUTH 33°48’40” EAST, 15.00 FEET; 8) SOUTH 89°57’29” EAST, 48.23 FEET; 9) NORTH 56°11’20” EAST, 114.06 FEET; 10) NORTH 47°26’41” EAST, 58.33 FEET TO A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF TROPICANA AVENUE, BEING A POINT ON THE NORTHERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY AND NORTHERLY LOT LINE THE FOLLOWING TWO (2) COURSES: 1) NORTH 88°59’03” EAST, 521.56 FEET; 2) NORTH 01°00’57” WEST, 27.62 FEET TO A POINT ON THE NORTHERLY LINE OF LAND AS DESCRIBED IN SAID QUIT CLAIM DEED, RECORDED FEBRUARY 2, 2006 IN BOOK 20060222, INSTRUMENT NO. 01362 ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, BEING A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF SAID TROPICANA AVENUE; THENCE ALONG SAID NORTHERLY LINE AND SOUTHERLY RIGHT-OF-WAY THE FOLLOWING ELEVEN (11) COURSES: 1) NORTH 03°50’45” EAST, 2.70 FEET; 2) NORTH 89°06’15” EAST, 176.73 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 28.70 FEET, FROM WHICH BEGINNING THE RADIUS BEARS SOUTH 04°23’03” EAST; 3) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 53°31’06”, AN ARC LENGTH OF 26.81 FEET TO A POINT OF NON-TANGENCY TO WHICH A RADIAL LINE BEARS NORTH 49°08’03” EAST; 4) NORTH 87°00’02” EAST, 130.87 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 33.37 FEET, FROM WHICH BEGINNING THE RADIUS BEARS SOUTH 62°52’38” EAST; 5) NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 63°25’52”, AN ARC LENGTH OF 36.94 FEET TO A POINT OF

 

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NON-TANGENCY TO WHICH A RADIAL LINE BEARS NORTH 00°33’14” EAST; 6) NORTH 89°00’31” EAST, 188.21 FEET; 7) NORTH 89°00’28” EAST, 43.99 FEET; 8) NORTH 01°03’50” WEST, 4.09 FEET; 9) NORTH 88°56’10” EAST, 222.87 FEET; 10) SOUTH 87°26’03” EAST, 68.27 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 77.43 FEET, FROM WHICH BEGINNING THE RADIUS BEARS SOUTH 03°55’25” WEST; 11) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 37°15’49”, AN ARC LENGTH OF 50.36 FEET TO A POINT OF NON-TANGENCY, TO WHICH A RADIAL LINE BEARS NORTH 41°11’14” EAST, BEING A POINT ON THE WESTERLY RIGHT-OF-WAY OF SAID LAS VEGAS BOULEVARD, BEING A POINT ON THE EASTERLY LINE OF LAND AS DESCRIBED IN SAID RESOLUTION OF ABANDONMENT OF A PORTION OF HIGHWAY RIGHT-OF-WAY, RECORDED FEBRUARY 2, 2006 IN BOOK 20060222, INSTRUMENT NO. 01365 ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, AND BEING THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 77.43 FEET, FROM WHICH BEGINNING THE RADIUS BEARS SOUTH 41°11’14” WEST; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY AND EASTERLY LINE THE FOLLOWING FIVE (5) COURSES: 1) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 43°19’33”, AN ARC LENGTH OF 58.55 FEET TO A POINT OF NON-TANGENCY, TO WHICH A RADIAL LINE BEARS NORTH 84°30’47” EAST; 2) SOUTH 04°08’08” EAST, 67.85 FEET; 3) SOUTH 00°15’44” EAST, 27.67 FEET; 4) SOUTH 06°12’21” WEST, 62.23 FEET; 5) SOUTH 89°37’40” WEST, 23.16 FEET TO A POINT ON THE EASTERLY LINE OF SAID PARCEL 1, BEING A POINT ON THE WESTERLY RIGHT-OF-WAY OF SAID LAS VEGAS BOULEVARD; THENCE ALONG SAID EASTERLY LOT LINE AND WESTERLY RIGHT-OF-WAY SOUTH 00°20’10” EAST, 571.96 FEET; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY AND ALONG SAID EASTERLY LOT LINE THE FOLLOWING THREE (3) COURSES: 1) SOUTH 89°37’48” WEST, 175.00 FEET; 2) SOUTH 00°20’10” EAST, 140.00 FEET; 3) NORTH 89°37’48” EAST, 175.00 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY OF SAID LAS VEGAS BOULEVARD, BEING A POINT ON THE EASTERLY LINE OF PARCEL 1; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY AND CONTINUING ALONG SAID EASTERLY LOT LINE SOUTH 00°20’10” EAST, 229.97 FEET TO THE POINT OF BEGINNING .

TOGETHER WITH A PORTION OF PARCEL 1 AS SHOWN IN THAT CERTAIN FINAL MAP TITLED “MANDALAY MILE NORTH, A COMMERCIAL SUBDIVISION”, RECORDED IN BOOK 110, PAGE 46 OF PLATS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, LYING WITHIN A PORTION OF THE NORTHWEST QUARTER (NW 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

COMMENCING AT THE AFOREMENTIONED POINT “A” ; THENCE NORTH 17°52’21” EAST, 68.61 FEET TO THE POINT OF BEGINNING “A” ; THENCE CONTINUING NORTH 17°52’21” EAST, 122.55 FEET; THENCE NORTH 86°07’17” EAST, 187.48 FEET; THENCE SOUTH 33°48’40” EAST, 26.57 FEET; THENCE SOUTH 56°11’20” WEST, 85.91 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 360.00 FEET; THENCE WESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 28°40’12”, AN ARC LENGTH OF 180.14 FEET TO A POINT TO WHICH A RADIAL LINE BEARS SOUTH 05°08’28” EAST AND BEING THE POINT OF BEGINNING “A” .

ALSO DELINEATED AS “EXCALIBUR” ON THAT CERTAIN RECORD OF SURVEY IN FILE 192 OF SURVEYS, PAGE 1 IN THE OFFICE OF THE COUNTY RECORDER OF CLARK COUNTY, NEVADA.

AND

ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF CLARK, STATE OF NEVADA, DESCRIBED AS FOLLOWS:

THE NORTH 140 FEET OF THE SOUTH 400 FEET OF THE EASTERLY 325 FEET OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M.

 

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EXCEPTING THEREFROM THE INTEREST IN AND TO THE EAST 150 FEET THEREOF AS CONVEYED TO THE STATE OF NEVADA FOR HIGHWAY PURPOSES.

AS REFERENCED BY THAT CERTAIN GRANT, BARGAIN AND SALE DEED RECORDED DECEMBER 29, 2005 IN BOOK 20051229 AS INSTRUMENT NO. 0003334, OF OFFICIAL RECORDS.

 

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Gold Strike Hotel and Casino - 1010 Casino Center Drive, Robinsonville, Mississippi

Real property in the City of Tunica, County of Tunica, State of Mississippi, described as follows:

Being a description of the Circus Circus Mississippi, Inc. 23.989 acre tract of land lying in Sections 2, and 11, Township Three South, Range Eleven West, Tunica County, Mississippi, of record in Book B5, Page 125 at the Tunica County Clerk’s Office, and being more particularly described as follows:

Commencing at the section corner between Sections 1,2,11 and 12, Township Three South, Range Eleven West Tunica County, Mississippi; Thence S00°00’06“E along the East line of said Section 11 a distance of 115.73 feet to a point on the North line of the Yazoo-Mississippi Delta Levee Board right-of-way; Thence S74°46’53“W along said Levee Board right-of-way a distance of 1439.74 feet to the point of beginning; Thence continuing S74°46’53“W along said Levee Board right-of-way a distance of 540.17 feet to an angle point; Thence S68°17’02“W and continuing along said Levee Board right-of-way a distance of 544.92 feet to a point; Thence leaving said Levee Board right-of-way N64°07’06“W a distance of 249.87 feet to a point on the East line of James Neely Grant III Property; Thence N00°04’52“W along the said east line of the Grant Property a distance of 719.37 feet to the Northeast corner of the said Grant Property; Thence continuing N00°04’52“W a distance of 213.36 feet to a point; Thence the following courses and distances through the Robinson Property Group L.P. Property as recorded in Book V4, Page 16 at said Clerks Office;

N 22°31’05” W 142.42’

N 67°28’55” E 223.71’

To a point on a curve; Thence along a curve to the right having a radius of 175.00 feet, an arc length of 100.06 feet (chord N23°22’46“E - 98.70 feet) to a point of tangency; Thence

N 39°45’35” E 194.79’

S 58°17’44” E 180.67’

N 32°45’52” E 81.00’

S 57°14’08” E 192.00’

S 32°45’52” W 72.00’

S 57°14’08” E 228.13’

S 15°14’08” E 133.31’

S 74°45’52” W 50.00’

S 15°14’08” E 153.74’

To a point on a curve; Thence along a curve to the left having a radius of 599.00 feet an arc length of 180.63 feet (chord S50°50’14“W - 179.95 feet) to a point; Thence S15°13’07“E a distance of 489.42 feet to a point; Thence N74°46’53“E a distance of 404.49 feet to a point; Thence S15°13’07“E a distance of 74.00 feet to the point of beginning and containing 1,044,976 square feet or 23.989 acres.

 

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Luxor Hotel and Casino - 3900 Las Vegas Blvd. South, Las Vegas, NV

A PORTION OF PARCEL 1 AS SHOWN IN THAT CERTAIN FINAL MAP TITLED “MANDALAY MILE NORTH, A COMMERCIAL SUBDIVISION”, RECORDED IN BOOK 110, PAGE 46 OF PLATS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, LYING WITHIN A PORTION OF THE SOUTH HALF (S 1/2) OF THE NORTHEAST QUARTER (NE 1/4) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTH HALF (S 1/2) OF THE NORTHEAST QUARTER (NE 1/4) OF SAID SECTION 29; THENCE ALONG THE SOUTH LINE THEREOF SOUTH 89°45’12” EAST, 326.02 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY OF INTERSTATE 15, BEING A POINT ON THE WESTERLY RIGHT-OF-WAY OF SAID PARCEL 1 AND BEING THE POINT OF BEGINNING ; THENCE DEPARTING SAID SOUTHERLY LINE AND ALONG SAID EASTERLY RIGHT-OF-WAY AND WESTERLY LOT LINE, NORTH 00°09’20” EAST, 1385.84 FEET; THENCE DEPARTING SAID EASTERLY RIGHT-OF-WAY AND WESTERLY LOT LINE, NORTH 89°37’43” EAST, 1575.54 FEET; THENCE SOUTH 88°10’36” EAST, 212.25 FEET; THENCE NORTH 87°13’43” EAST, 194.12 FEET; THENCE NORTH 89°37’43” EAST, 59.95 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY OF LAS VEGAS BOULEVARD, AND BEING A POINT ON THE EASTERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY AND EASTERLY LOT LINE THE FOLLOWING THREE (3) COURSES: 1) SOUTH 00°20’10” EAST, 30.00 FEET; 2) SOUTH 00°19’25” EAST, 1246.96 FEET TO THE BEGINNING OF A NONTANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 65.00 FEET, FROM WHICH BEGINNING THE RADIUS BEARS NORTH 58°45’21” WEST; 3) SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 55°39’36”, AN ARC LENGTH OF 63.14 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY OF MANDALAY BAY ROAD AND BEING A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 1; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY AND EASTERLY LOT LINE AND ALONG SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE THE FOLLOWING FOUR (4) COURSES: 1) SOUTH 86°54’15” WEST, 26.79 FEET; 2) NORTH 89°48’34” WEST, 116.06 FEET; 3) SOUTH 88°36’39” WEST, 275.74 FEET; 4) NORTH 89°45’12” WEST, 262.72 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY AND SOUTHERLY LOT LINE, NORTH 00°04’05” WEST, 8.39 FEET; THENCE NORTH 89°13’56” EAST, 27.99 FEET; THENCE NORTH 00°03’02” WEST, 254.12 FEET; THENCE NORTH 89°53’30” WEST, 14.90 FEET; THENCE SOUTH 00°06’30” WEST, 3.68 FEET; THENCE NORTH 89°55’16” WEST, 115.98 FEET; THENCE SOUTH 00°04’44” WEST, 1.87 FEET; THENCE SOUTH 89°59’56” WEST, 239.81 FEET; THENCE SOUTH 00°04’29” WEST, 84.70 FEET; THENCE NORTH 89°55’13” WEST, 7.50 FEET; THENCE SOUTH 00°04’44” EAST, 3.10 FEET; THENCE SOUTH 89°30’12” WEST, 116.19 FEET; THENCE SOUTH 00°29’48” EAST, 27.61 FEET; THENCE SOUTH 89°37’02” WEST, 180.30 FEET; THENCE SOUTH 00°22’33” EAST, 137.14 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY OF SAID MANDALAY BAY ROAD AND BEING A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE THE FOLLOWING SIX (6) COURSES: 1) NORTH 89°45’12” WEST, 71.54 FEET; 2) SOUTH 00°11’26” EAST, 2.93 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 20.00 FEET; 3) SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 80°25’34”, AN ARC LENGTH OF 28.07 FEET; 4) SOUTH 80°14’08” WEST, 50.67 FEET; 5) SOUTH 79°25’20” WEST, 150.45 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 1695.00 FEET; 6) WESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 02°38’53”, AN ARC LENGTH OF 78.34 FEET TO A POINT TO WHICH A RADIAL LINE BEARS SOUTH 07°55’47” EAST, BEING A POINT ON THE EASTERLY LINE OF LOT 1 AS SHOWN IN FILE 87, PAGE 28 OF PARCEL MAPS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE; THENCE DEPARTING SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE AND ALONG THE EASTERLY LINE OF SAID LOT 1, NORTH 00°09’20” EAST, 233.35 FEET TO THE NORTHEAST CORNER OF SAID LOT 1; THENCE ALONG THE NORTHERLY LINE OF SAID LOT 1 NORTH 89°51’33” WEST, 250.01 FEET TO THE NORTHWEST CORNER OF SAID LOT 1; THENCE ALONG THE WESTERLY LINE OF SAID LOT 1 SOUTH 00°09’20” WEST, 250.12 FEET TO THE SOUTHWEST CORNER OF SAID LOT 1, BEING A POINT ON THE NORTHERLY RIGHT-OF-WAY OF SAID HACIENDA AVENUE AND BEING A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 1 AS SHOWN IN BOOK 110, PAGE 46 OF PLATS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE; THENCE ALONG SAID NORTHERLY RIGHT-OF-

 

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WAY AND SOUTHERLY LINE OF SAID PARCEL 1 NORTH 89°45’12” WEST, 60.00 FEET TO THE POINT OF BEGINNING .

ALSO DELINEATED AND DEPICTED ON THAT CERTAIN RECORD OF SURVEY FOR LUXOR HOTEL AND CASINO ON FILE IN BOOK 191 OF SURVEYS, PAGE 100, RECORDED MAY 19, 2014 IN BOOK 20140519 AS DOCUMENT NO. 0003004 OF OFFICIAL RECORDS.

(LEGAL DESCRIPTION AS PREVIOUSLY CONTAINED IN QUITCLAIM DEED RECORDED MAY 19, 2014 IN BOOK 20140519 AS DOCUMENT NO. 0003002 OF OFFICIAL RECORDS.)

 

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Mandalay Bay Hotel and Casino and Mandalay Place -

3950 and 3930 Las Vegas Blvd. South, Las Vegas, NV, respectively

Parcel One:

A PORTION OF PARCEL 2 AS SHOWN IN THAT CERTAIN FINAL MAP TITLED “MANDALAY MILE SOUTH, A COMMERCIAL SUBDIVISION” RECORDED IN BOOK 110, PAGE 38 OF PLATS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, LYING WITHIN A PORTION OF THE EAST HALF (E  1 ⁄ 2 ) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M, CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL 2, BEING A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF MANDALAY BAY ROAD; THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL 2 AND SAID SOUTHERLY RIGHT-OF-WAY, THE FOLLOWING TEN (10) COURSES:

1) NORTH 89°59’12” EAST, 110.89 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE TO THE NORTH, HAVING A RADIUS OF 1422.00 FEET, FROM WHICH BEGINNING THE RADIUS BEARS NORTH 00°19’32” EAST;

2) NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05°38’36”, AN ARC LENGTH OF 140.06 FEET TO THE BEGINNING OF A REVERSE CURVE,

CONCAVE TO THE SOUTH, HAVING A RADIUS OF 343.00 FEET, THROUGH WHICH A RADIAL LINE BEARS SOUTH 05°19’04” EAST;

3) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 09°34’16”, AN ARC LENGTH OF 57.30 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 207.00 FEET, THROUGH WHICH A RADIAL LINE BEARS NORTH 04°15’12” EAST;

4) NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 13°19’52”, AN ARC LENGTH OF 48.16 FEET;

5) NORTH 80°55’20” EAST, 229.65 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 24.00 FEET;

6) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 98°53’14”, AN ARC LENGTH OF 41.42 FEET TO A POINT OF NON-TANGENCY, TO WHICH A RADIAL

BEARS NORTH 89°48’34” EAST;

7) NORTH 89°48’34” EAST, 85.82 FEET;

8) NORTH 00°11’26” WEST, 45.27 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 20.00 FEET;

9) NORTHEASTERLY ALONG SAID CURVE, THOUGH A CENTRAL ANGLE OF 90°26’14”, AN ARC LENGTH OF 31.57 FEET;

10) SOUTH 89°45’12” EAST, 252.93 FEET;

THENCE DEPARTING SAID NORTHERLY LOT LINE AND SOUTHERLY RIGHT-OF-WAY THE FOLLOWING THIRTEEN (13) COURSES:

1) SOUTH 00°04’44” EAST, 35.69 FEET;

2) NORTH 89°57’34” EAST, 11.22 FEET;

3) NORTH 00°03’10” EAST, 5.20 FEET;

4) SOUTH 89°56’50” EAST, 86.88 FEET;

5) SOUTH 00°01’37” EAST, 184.12 FEET;

6) SOUTH 89°54’25” EAST, 100.14 FEET;

7) SOUTH 00°01’51” EAST, 0.90 FEET;

8) NORTH 89°58’09” EAST, 136.59 FEET;

9) NORTH 00°01’34” EAST, 126.40 FEET;

10) SOUTH 89°46’59” EAST, 43.24 FEET;

11) NORTH 00°07’07” EAST, 79.81 FEET;

12) NORTH 89°25’51” WEST, 28.13 FEET;

13) NORTH 00°04’05” WEST, 7.84 FEET TO A POINT ON THE NORTHERLY LINE OF SAID

 

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PARCEL 2, BEING A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF MANDALAY BAY ROAD;

THENCE ALONG SAID NORTHERLY LOT LINE AND SOUTHERLY RIGHT-OF-WAY THE FOLLOWING EIGHT (8) COURSES:

1) SOUTH 89°45’12” EAST, 390.89 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO

THE SOUTHWEST, HAVING A RADIUS OF 540.00 FEET;

2) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 13°50’55”,

AN ARC LENGTH OF 130.52 FEET;

3) SOUTH 75°54’17” EAST, 10.10 FEET;

4) SOUTH 14°05’43” WEST, 5.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 820.56 FEET, FROM WHICH BEGINNING THE RADIUS BEARS SOUTH 14°05’43” WEST;

5) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 06°19’52”, AN ARC LENGTH OF 90.67 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 160.50 FEET, THROUGH WHICH A RADIAL LINE BEARS NORTH 20°25’35” EAST;

6) SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18°28’09”, AN ARC LENGTH OF 51.60 FEET;

7) SOUTH 87°59’34” EAST, 47.57 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 44.00 FEET

8) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 28°57’02”, AN ARC LENGTH OF 22.23 FEET TO A POINT OF NON-TANGENCY, TO WHICH A RADIAL LINE BEARS NORTH 30°57’28” WEST, BEING THE NORTHEAST CORNER OF SAID PARCEL 2 AND A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD;

THENCE ALONG SAID EASTERLY LINE OF SAID PARCEL 2 AND WESTERLY RIGHT-OF-WAY LINE OF SAID LAS VEGAS BOULEVARD SOUTH 00°19’56” EAST, 2484.50 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 94.50 FEET; THENCE DEPARTING SAID EASTERLY LOT LINE AND WESTERLY RIGHT-OF-WAY LINE AND SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 91°40’08”, AN ARC LENGTH OF 151.19 FEET TO A POINT ON THE SOUTHERLY LINE OF

SAID PARCEL 2, BEING A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF RUSSELL ROAD;

THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL 2 AND NORTHERLY RIGHT-OF-WAY

OF SAID RUSSELL ROAD THE FOLLOWING FIVE (5) COURSES:

1) NORTH 88°39’48” WEST, 298.50 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO

THE SOUTHEAST, HAVING A RADIUS OF 1018.00 FEET;

2) SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 08°12’14”,

AN ARC LENGTH OF 145.76 FEET;

3) SOUTH 83°07’58” WEST, 564.67 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO

THE NORTHWEST, HAVING A RADIUS OF 882.00 FEET;

4) SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL, OF 08°12’12”, AN ARC

LENGTH OF 126.28 FEET;

5) NORTH 88°39’50” WEST, 402.53 FEET TO THE SOUTHWEST CORNER OF SAID PARCEL 2,

BEING A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF INTERSTATE 15;

THENCE ALONG THE WESTERLY LINE OF SAID PARCEL 2 AND THE EASTERLY RIGHT-OF-WAY

LINE OF SAID INTERSTATE 15, THE FOLLOWING ELEVEN (11) COURSES:

1) NORTH 01°20’10” EAST, 58.26 FEET;

2) NORTH 86°26’33” WEST, 89.06 FEET;

3) NORTH 06°23’24” WEST, 88.00 FEET;

4) NORTH 05°15’27” WEST, 49.41 FEET

5) NORTH 11°36’04” WEST, 65.67 FEET;

6) NORTH 15°48’20” WEST, 157.69 FEET;

7) NORTH 18°00’59” WEST, 86.07 FEET;

8) NORTH 20°58’11” WEST, 190.65 FEET;

 

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9) NORTH 22°00’32” WEST, 321.50 FEET

10) NORTH 16°05’22” WEST, 249.02 FEET;

11) NORTH 00°09’20” EAST, 1415.80 FEET TO THE POINT OF BEGINNING.

ALSO SHOWN AS “MANDALAY BAY” ON THAT CERTAIN RECORD OF SURVEY RECORDED FEBRUARY 13, 2013 IN FILE 188, PAGE 43 OF SURVEYS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE.

Parcel Two:

A PORTION OF PARCEL 1 AS SHOWN IN THAT FINAL MAP TITLED “MANDALAY MILE NORTH, A COMMERCIAL SUBDIVISION”, RECORDED IN BOOK 110, PAGE 46 OF PLATS, TOGETHER WITH A PORTION OF PARCEL 2 AS IN THAT CERTAIN FINAL MAP TITLED “MANDALAY MILE SOUTH, A COMMERCIAL SUBDIVISION”, RECORDED IN BOOK 110, PAGE 38 OF PLATS, ALSO TOGETHER WITH A PORTION OF MANDALAY BAY ROAD AS SHOWN IN THAT CERTAIN ORDER OF VACATION, RECORDED JUNE 28, 2012 IN BOOK 20120628, INSTRUMENT NO. 00415 ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, LYING WITHIN A PORTION OF THE EAST HALF (E  1 ⁄ 2 ) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST. M.D.M., CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SAID SECTION 29, THENCE ALONG THE SOUTH LINE THEREOF NORTH 89º 45’ 12” WEST, 203.24 FEET; THENCE DEPARTING SAID SOUTH LINE NORTH 00°14’48“EAST, 99.55 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY OF MANDALAY BAY ROAD, BEING A POINT IN THE SOUTHERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE THE FOLLOWING FOUR (4) COURSES: 1) SOUTH 86°54’15” WEST, 26.79 FEET; 2) NORTH 89°48’34” WEST, 116.06 FEET; 3) SOUTH 88°36’39” WEST, 275.74 FEET; 4) NORTH 89°45’12“WEST, 262.72 FEET TO THE NORTHEAST CORNER OF LAND AS DESCRIBED IN SAID ORDER OF VACATION AND BEING THE POINT OF BEGINNING; THENCE DEPARTING SAID NORTHERLY RIGHT-OF WAY AND SOUTHERLY LOT LINE AND ALONG THE EAST LINE OF SAID ORDER OF VACATION SOUTH 00°04’05” EAST, 80.01 FEET TO THE SOUTHEAST CORNER OF SAID ORDER OF VACATION, BEING A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF SAID MANDALAY BAY ROAD AND A POINT ON THE NORTHERLY LINE OF SAID PARCEL 2; THENCE DEPARTING SAID SOUTHERLY RIGHT-OF-WAY LINE AND NORTHERLY LOT LINE AND CONTINUING SOUTH 00°04’05” EAST, 7.84 FEET; THENCE SOUTH 89°25’51“EAST, 28.13 FEET; THENCE SOUTH 00°07’07” WEST, 79.81 FEET; THENCE NORTH 89°46’59” WEST, 43.24 FEET; THENCE SOUTH 00°01’34” WEST, 126.40 FEET; THENCE SOUTH 89°58’09” WEST, 136.59 FEET; THENCE NORTH 00°01’51” WEST, 0.90 FEET; THENCE NORTH 89°54’25” WEST, 100.14 FEET; THENCE NORTH 00°01’37” WEST 184.12 FEET; THENCE NORTH 89°56’50” WEST, 86.88 FEET; THENCE SOUTH 00°03’10” WEST, 5.20 FEET; THENCE SOUTH 89°57’34“WEST, 11.22 FEET; THENCE NORTH 00°04’44” WEST, 35.69 FEET TO THE SOUTHWEST CORNER OF SAID ORDER OF VACATION, BEING A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF SAID MANDALAY BAY ROAD AND A POINT ON THE NORTHERLY LINE OF SAID PARCEL 2; THENCE DEPARTING SAID SOUTHERLY RIGHT-OF WAY AND NORTHERLY LOT LINE AND ALONG THE WEST LINE OF SAID ORDER OF VACATION AND CONTINUING NORTH 00°04’44” WEST, 80.01 FEET TO THE NORTHWEST CORNER OF SAID ORDER OF VACATION, BEING A POINT ON THE NORTHERLY RIGHT-OF-WAY OF SAID MANDALAY BAY ROAD AND A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE NORTH89°45’12“WEST, 295.59 FEET; THENCE DEPARTING SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE NORTH 00°22’33” WEST, 137.14 FEET; THENCE NORTH 89°37’02” EAST, 180.30 FEET; THENCE NORTH 00°29’48” WEST, 27.61 FEET, THENCE NORTH 89°30’12” EAST, 116.19 FEET; THENCE NORTH 00°04’44” WEST, 3.10 FEET; THENCE SOUTH 89°55’13” EAST, 7.50 FEET; THENCE NORTH 00°04’29” EAST 84.70 FEET; THENCE NORTH 89°59’56” EAST 239.81 FEET; THENCE NORTH 00°04’44” EAST 1.87 FEET; THENCE SOUTH 89°55’16” EAST, 115.98 FEET; THENCE NORTH 00°06’30“EAST, 3.68 FEET; THENCE SOUTH 89°53’30” EAST, 14.90 FEET; THENCE SOUTH 00°03’02” EAST, 254.12 FEET; THENCE SOUTH 89°13’56” WEST, 27.99 FEET; THENCE SOUTH 00° 04’05” EAST, 8.39 FEET TO

 

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THE POINT OF BEGINNING.

ALSO SHOWN AS “MANDALAY PLACE” ON THAT CERTAIN RECORD OF SURVEY, RECORDED FEBRUARY 13, 2013 IN FILE 188, PAGE 37 OF SURVEYS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE.

 

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MGM GRAND DETROIT - 1777 Third Street, Detroit, Michigan, 48226

 

TAX PARCEL ID:            04004075-143B
COUNTY:            Wayne
ADDRESS:            commonly known as 1777 THIRD, DETROIT, MI 48226

Real property in the City of Detroit, County of Wayne, State of Michigan, described as follows: Part of Private Claims 23, 55, and 247, City of Detroit, Wayne County, Michigan, described as: Part of Lots 1 thru 7 of Block 57, part of Lots 1 thru 6 of Block 64, part of Lots 1 thru 6 of Block 69, of “Cass Western Addition to the City of Detroit, between the Chicago and Grand River Roads, by Lewis Cass 1851”, as recorded in Liber 42, Pages 138 thru 141 of Deeds, Wayne County Records; part of Lot 8 and all of Lot 9 of Block 57, part of Lots 1 thru 4, and all of Lots 5 and 6 of Block 61, all of Lots 7 and 8 of Block 64, part of Lots 1 thru 6, and all of Lots 7 and 8 of Block 67, all of Lots 7 and 8 of Block 69, of “Plat of Subdivision of Blocks 52, 61, 67 and part of Blocks 57, 64, 69, and 71 of the Cass Farm” as recorded in Liber 1, Page 128A of Plats, Wayne County Records; also all of Lots 1 thru 6, and all of Lots 10 and 11, and part of Lots 7 thru 9 of Block 55, all of Lots 1 thru 8 of Block 56, all of Lots 1 thru 8 Block 57, all of Lots 7 thru 15, and part of Lots 1 thru 6 of Block 54, of “Plat of the Subdivision of the Jones’ Farm between Michigan Avenue and the North line of Beech Street”, as recorded in Liber 53, Page 53 of Deeds, Wayne County Records; also all of Lots 1 thru 10 of Block 58, all of Lots 1 thru 10 of Block 59, all of Lots 1 thru 10 of Block 60, all of Lots 1 thru 10 of Block 61, all of Lots 2 thru 8, and part of Lots 1, 9, and 10 of Block 62, all of Lots 1 thru 10 of Block 63 of “Plat of Subdivision of the Jones’ Farm South of the Grand River Road”, as recorded in Liber 1, Page 184 of Plats, Wayne County Records; also all of Lots 8 thru 12, and part of Lots 1 thru 7 of Block 1, all of Lots 11 and 12, and part of Lot 10 of Block 2, all of Lot 3, all of Lots 5 thru 8, and part of Lots 1, 2, and 4 of Block 3, all of Lots 1 thru 8 of Block 4, all of Lots 1 thru 9 of Block 5, all of Lots 2 thru 9, and part of Lot 1 of Block 6, all of Lots 4 and 5, and part of Lots 2 and 3, and part Lots 6 thru 9 of Block 7, all of Lots 1 thru 9 of Block 8, all of Lots 1, 4, and 5, and part of Lots 2 and 3, and part of Lots 6 thru 8 of Block 9, part of Lot 5 of Block 10 of “Crane and Wesson’s Section of the Forsyth Farm between Chicago and Grand River Roads”, as recorded in Liber 44, Pages 10 and 11, of Deeds, Wayne County Records; also Elton Park, vacated Fourth, Fifth, Beech, Elizabeth & Plum Streets, and Plaza Drive; also all of the alleys, all within the bounds of the more particularly described parcel:

Beginning at a point distant South 67 degrees 04 minutes 00 seconds West 38.00 feet from the Northerly corner of Lot 1 of Block 69 of “Cass Western Addition to the City of Detroit” as recorded in Liber 42, Pages 138-141 of Deeds, Wayne County Records, being also the intersection of the Westerly line of Third Avenue (variable width) and the Southerly line of the South Bound Fisher Service Drive (variable width) and proceeding thence South 22 degrees 56 minutes 00 seconds East 323.50 feet along the Westerly line of Third Avenue; thence North 67 degrees 04 minutes 00 seconds East 12.00 feet; thence South 22 degrees 56 minutes 00 seconds East 254.62 feet, along the Westerly line of Third Avenue; thence South 67 degrees 04 minutes 00 seconds West 10.50 feet; thence South 22 degrees 56 minutes 00 seconds East 327.03 feet, along the Westerly line of Third Avenue; thence North 67 degrees 04 minutes 00 seconds East 10.50 feet; thence South 22 degrees 56 minutes 00 seconds East 250.35 feet along the Westerly line of Third Avenue; thence South 67 degrees 04 minutes 00 seconds West 12.00 feet; thence South 22 degrees 56 minutes 00 seconds East 218.50 feet along the Westerly line of Third Avenue; thence South 67 degrees 04 minutes 00 seconds West 95.05 feet along the Northerly line of Bagley Avenue (variable width); thence North 22 degrees 56 minutes 00 seconds West 8.00 feet; thence South 67 degrees 04 minutes 00 seconds West 190.00 feet along the Northerly line of Bagley Avenue; thence South 71 degrees 38 minutes 09 seconds West 50.16 feet; thence South 89 degrees 50 minutes 52 seconds West 368.44 feet; thence North 83 degrees 53 minutes 39 seconds West 57.19 feet; thence South 82 degrees 26 minutes 40 seconds West 72.31 feet; thence North 83 degrees 37 minutes 39 seconds West 23.54 feet; thence North 23 degrees 24 minutes 01 seconds West 66.89 feet; thence North 59 degrees 04 minutes 20 seconds West 49.52 feet; thence North 33 degrees 33 minutes 11 seconds West 162.79 feet; thence North 40 degrees 40 minutes 41 seconds West 52.50 feet; thence North 22 degrees 56 minutes 00 seconds West 96.00 feet; thence South 67 degrees 04 minutes 00 seconds West 4.00 feet; thence North 22 degrees 56 minutes 00 seconds West 152.00 feet; thence North 14 degrees 17 minutes 30 seconds West 50.90 feet; thence North 17 degrees 12 minutes 04 seconds West 75.57 feet; thence North 05 degrees 05 minutes 55 seconds West 31.51 feet; thence North 04 degrees 38 minutes 20 seconds West 48.35 feet; thence North 07 degrees 12 minutes 29 seconds East 71.72 feet; thence North 08 degrees 18 minutes 11 seconds East 40.42 feet; thence North 17 degrees 01 minutes 52 seconds East 65.24 feet; thence North 18 degrees 41 minutes 24 seconds East 46.82 feet; thence North 27 degrees 42

 

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minutes 54 seconds East 64.66 feet; thence North 32 degrees 04 minutes 41 seconds East 13.95 feet; thence North 32 degrees 04 minutes 27 seconds East 95.91 feet; thence North 41 degrees 49 minutes 22 seconds East 44.22 feet; thence North 41 degrees 50 minutes 04 seconds East 44.22 feet; thence North 38 degrees 54 minutes 08 seconds East 68.06 feet; thence North 47 degrees 25 minutes 07 seconds East 116.48 feet; thence North 67 degrees 04 minutes 00 seconds East 335.05 feet, along the Southerly line of the South Bound Fisher Service Drive to the point of beginning.

 

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Mirage Hotel and Casino - 3400 Las Vegas Blvd. South, Las Vegas, NV

PARCEL I:

THAT PORTION OF LOT ONE (1) OF “TI/MIRAGE ONE LOT COMMERCIAL SUBDIVISION”, A COMMERCIAL SUBDIVISION, ON FILE IN BOOK 141 OF PLATS, PAGE 55 IN THE CLARK COUNTY RECORDER’S OFFICE, LYING WITHIN THE WEST HALF (W 1/2) OF SECTION 16 AND THE EAST HALF (E 1/2) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 16;

THENCE ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 16 NORTH 00°24’19” WEST 493.27 FEET TO THE POINT OF BEGINNING;

THENCE SOUTH 63°50’11” EAST 94.06 FEET;

THENCE SOUTH 33°16’55” WEST 26.46 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4.60 FEET, A CENTRAL ANGLE OF 92°13’00”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 08°52’21” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 7.40 FEET;

THENCE SOUTH 01°21’09” WEST 36.82 FEET;

THENCE SOUTH 01°32’41” WEST 53.52 FEET TO THE BEGINNING POINT OF CUSP OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 35.00 FEET, A CENTRAL ANGLE OF 04°29’12” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 87°31’21” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 2.74 FEET;

THENCE SOUTH 01°14’10” WEST 90.31 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 278.00 FEET, A CENTRAL ANGLE OF 22°05’33”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 89°07’35” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 107.19 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 249.00 FEET, A CENTRAL ANGLE OF 26°50’50”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 68°46’53” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 116.67 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 298.00 FEET, A CENTRAL ANGLE OF 21°01’58”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 41°56’03” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 109.39 FEET;

THENCE SOUTH 69°05’55” EAST 50.46 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 830.00 FEET, A CENTRAL ANGLE OF 09°03’24”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 20°46’30” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 131.20 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 49.80 FEET, A CENTRAL ANGLE OF 14°47’53”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 11°43’06” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 12.86 FEET;

THENCE NORTH 86°55’14” EAST 12.30 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD AS DEDICATED IN DOCUMENT 931020 INSTRUMENT 01511 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE FOLLOWING FIFTEEN (15) COURSES;

1)

THENCE SOUTH 11°41’28” EAST, 22.85 FEET;

2)

THENCE SOUTH 24°39’16” WEST, 29.31 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 210.00 FEET AND A CENTRAL ANGLE OF 04°36’48”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 24°39’17” EAST;

3)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 16.91 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 8.00

 

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FEET, A CENTRAL ANGLE OF 86°03’20” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 29°16’06” EAST;

4)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.02 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4066.00 FEET, A CENTRAL ANGLE OF 03°11’04” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 64°40’34” WEST;

5)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 225.98 FEET TO THE BEGINNING OF A NON-TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 1000.00 FEET, A CENTRAL ANGLE OF 05°04’14” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 67°51’39” WEST;

6)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 88.50 FEET;

7)

THENCE SOUTH 17°04’07” WEST, 271.00 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4054.00 FEET AND A CENTRAL ANGLE OF 02°20’57”;

8)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 166.22 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 8.00 FEET, A CENTRAL ANGLE OF 91°48’30” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 75°16’49” EAST;

9)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.82 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 200.00 FEET, A CENTRAL ANGLE OF 02°20’23” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 16°31’41” WEST;

10)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 8.17 FEET;

11)

THENCE SOUTH 18°52’04” WEST, 33.74 FEET;

12)

THENCE SOUTH 45°12’14” WEST, 19.51 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 61.24 FEET, A CENTRAL ANGLE OF 60°48’08” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 45°12’14” EAST;

13)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 64.99 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 248.30 FEET, A CENTRAL ANGLE OF 06°46’08” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 73°59’38” WEST;

14)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 29.33 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 512.04 FEET, A CENTRAL ANGLE OF 02°59’41” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 80°45’46” EAST;

15)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 26.76 FEET;

THENCE DEPARTING SAID RIGHT-OF-WAY LINE, NORTH 88°44’46” WEST, 138.91 FEET;

THENCE NORTH 88°51’07” WEST, 1924.03 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 45.00 FEET, A CENTRAL ANGLE OF 44°33’49” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 45°13’22” WEST, SAID POINT BEING ON THE EAST RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE AND INDUSTRIAL ROAD (ALSO KNOWN AS SAMMY DAVIS JR. DRIVE) AS DEDICATED IN DOCUMENT 940831:01339 OF OFFICIAL RECORDS IN THE CLARK COUNTY NEVADA RECORDER’S OFFICE;

THENCE ALONG SAID EAST RIGHT-OF-WAY LINE THE FOLLOWING NINE (9) COURSES:

1)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 35.00 FEET;

2)

THENCE NORTH 00°12’49” WEST, 137.18 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 40.00 FEET AND A CENTRAL ANGLE OF 91°31’55”;

3)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 63.90 FEET;

4)

THENCE NORTH 00°12’49” WEST, 46.19 FEET;

5)

THENCE NORTH 35°46’51” EAST, 5.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 75.00 FEET, A CENTRAL ANGLE OF 68°15’46” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 35°46’42” WEST;

6)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 89.36 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 500.00 FEET, A CENTRAL ANGLE OF 04°42’30” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 75°57’32” WEST;

 

 

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7)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 41.09 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 143.00 FEET, A CENTRAL ANGLE OF 08°20’29” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 71°15’02” WEST;

8)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 20.82 FEET;

9)

THENCE NORTH 27°05’27” EAST, 389.60 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 6000.00 FEET, A CENTRAL ANGLE OF 00°28’42” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 63°51’57” WEST;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 0496:0399453 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, THE FOLLOWING THREE (3) COURSES:

1)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 50.09 FEET;

2)

NORTH 27°37’16” EAST, 228.55 FEET;

3)

THENCE NORTH 89°12’43” WEST, 9.14 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 6000.00 FEET, A CENTRAL ANGLE OF 00°22’57” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 65°32’14” EAST, SAID POINT ALSO BEING ON THE EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN THE AFOREMENTIONED DOCUMENT 940831:01339 OF OFFICIAL RECORDS;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD THE FOLLOWING TWO (2) COURSES:

1)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 40.06 FEET;

2)

THENCE NORTH 24°04’49” EAST ALONG SAID RIGHT-OF-WAY, 142.71 FEET;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 940831:01338 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, THE FOLLOWING EIGHT (8) COURSES:

1)

NORTH 24°06’50” EAST, 76.42 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 40.00 FEET AND A CENTRAL ANGLE OF 90°36’48”;

2)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 63.26 FEET;

3)

THENCE NORTH 24°43’38” EAST, 32.50 FEET;

4)

THENCE NORTH 65°16’22” WEST, 1.55 FEET;

5)

THENCE NORTH 24°43’38” EAST, 32.50 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 40.00 FEET, A CENTRAL ANGLE OF 89°23’12” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 24°43’38” WEST;

6)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 62.40 FEET;

7)

THENCE NORTH 24°06’50” EAST, 30.30 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 3000.00 FEET, A CENTRAL ANGLE OF 03°53’45” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 65°53’11” WEST;

8)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 203.99 FEET;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 900501:00870 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, NORTH 70°41’14” EAST, 13.27 FEET (RECORD) 17.49 FEET (MEASURED) TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 43.38 FEET, A CENTRAL ANGLE OF 44°15’53” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 69°15’46” WEST;

THENCE DEPARTING SAID RIGHT-OF-WAY LINE AND ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 33.51 FEET;

THENCE SOUTH 62°18’55” EAST, 307.43 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 228.35 FEET, A CENTRAL ANGLE OF 20°36’47” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 24°32’14” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 82.15 FEET;

THENCE SOUTH 89°17’23” EAST, 143.71 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 1275.46 FEET, A CENTRAL ANGLE OF 04°52’51” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 01°57’34” EAST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 108.65 FEET;

 

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THENCE NORTH 33°06’16” EAST 24.72 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 45.50 FEET, A CENTRAL ANGLE OF 68°17’20” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 00°32’30” EAST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 54.23 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 25.00 FEET, A CENTRAL ANGLE OF 69°47’28” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 68°49’50” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 30.45 FEET;

THENCE SOUTH 89°11’01” EAST, 61.01 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 70.00 FEET AND A CENTRAL ANGLE OF 90°59’03”;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 111.16 FEET TO A POINT OF CUSP ON THE EAST RIGHT-OF-WAY LINE OF VEGAS PLAZA DRIVE AS SHOWN BY MAP THEREOF IN BOOK 46, PAGE 64 OF PLATS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE;

THENCE SOUTH 00°12’48” EAST 39.29 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 21.50 FEET, A CENTRAL ANGLE OF 55°05’49”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 54°34’21” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 20.67 FEET;

THENCE SOUTH 88°49’38” EAST 99.04 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 449.10 FEET, A CENTRAL ANGLE OF 04°47’17”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 11°59’48” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 37.53 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 21.10 FEET, A CENTRAL ANGLE OF 49°21’12”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 16°49’25” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 18.18 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 10.70 FEET, A CENTRAL ANGLE OF 27°53’16”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 32°29’52” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 5.21 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 12.70 FEET, A CENTRAL ANGLE OF 23°06’26”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 04°37’48” EAST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 5.12 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 68.60 FEET, A CENTRAL ANGLE OF 41°03’53”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 13°26’43” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 49.17 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 52.50 FEET, A CENTRAL ANGLE OF 43°00’24”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 23°03’16” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 39.41 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 177.80 FEET, A CENTRAL ANGLE OF 19°15’45”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 15°57’04” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 59.78 FEET;

THENCE SOUTH 88°48’48” EAST 117.50 FEET;

THENCE SOUTH 63°50’11” EAST 23.91 FEET TO THE POINT OF BEGINNING.

THE ABOVE DESCRIPTION WAS PREPARED BY RANDY A. OXBORROW, PLS NO. 10119, OF LOCHSA SURVEYING, 6345 S. JONES BLVD., SUITE 200, LAS VEGAS, NV 89118, AND REPRESENTS THE REMAINDER OF LOT 1 OF “TI/MIRAGE ONE LOT COMMERCIAL SUBDIVISION” ON FILE IN BOOK 141 OF PLATS, PAGE 55, OFFICIAL RECORDS, AFTER EXCEPTING THEREFROM THOSE CERTAIN RECORDS OF SURVEY FILED IN FILE 177 OF SURVEYS, PAGE 0064, OFFICIAL RECORDS; FILE 177 OF SURVEYS, PAGE 0065, OFFICIAL RECORDS; AND FILE 177 OF SURVEYS, PAGE 0066, OFFICIAL RECORDS.

 

S-16

PARCEL II:

THAT PORTION OF LOT ONE (1) OF “TI/MIRAGE ONE LOT COMMERCIAL SUBDIVISION”, A COMMERCIAL SUBDIVISION, ON FILE IN BOOK 141 OF PLATS, PAGE 55 IN THE CLARK COUNTY RECORDER’S OFFICE, LYING WITHIN THE WEST HALF (W 1/2) OF SECTION 16, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT OF THE WESTERLY LINE AS DEDICATED BY THOSE CERTAIN DOCUMENTS RECORDED IN BOOK 931020 AS INSTRUMENT NO. 01511 OF OFFICIAL RECORDS IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, FROM WHICH A LAS VEGAS BOULEVARD RIGHT-OF-WAY BRASS CAP NO. 029Y, AS SHOWN BY THAT CERTAIN MAP IN FILE 169, PAGE 20 OF SURVEYS IN CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEARS NORTH 31°42’48” EAST 217.60 FEET;

THENCE SOUTH 28°49’54” WEST 8.60 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE WEST, HAVING A RADIUS OF 50.00 FEET, A CENTRAL ANGLE OF 52°41’26”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 66°21’08“EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 45.98 FEET;

THENCE SOUTH 29°02’34” WEST 60.11 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 50.00 FEET AND A CENTRAL ANGLE OF 07°07’30”;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 6.22 FEET;

THENCE SOUTH 36°10’04” WEST 87.41 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 100.00 FEET AND A CENTRAL ANGLE OF 07°07’30”.

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 12.44 FEET;

THENCE SOUTH 29°02’34’ WEST 146.78 FEET TO A POINT FROM WHICH A LAS VEGAS BOULEVARD RIGHT-OF-WAY BRASS CAP NO. 027Y, AS SHOWN BY THAT CERTAIN MAP IN FILE 169, PAGE 20 OF SURVEYS IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEARS NORTH 56°46’46” WEST 8.60 FEET AND THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 75.00 FEET AND A CENTRAL ANGLE OF 49°15’58”;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 64.49 FEET;

THENCE SOUTH 86°55’14” WEST 12.30 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 49.80 FEET AND A CENTRAL ANGLE OF 14°47’52”;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.86 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 830.00 FEET, A CENTRAL ANGLE OF 09°03’24”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 11°43’06” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 131.20 FEET;

THENCE NORTH 69°05’55” WEST 50.46 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 298.00 FEET AND A CENTRAL ANGLE OF 21°01’58”;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 109.39 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 249.00 FEET, A CENTRAL ANGLE OF 26°50’50”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 41°56’03” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 116.67 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 278.00 FEET, A CENTRAL ANGLE OF 22°05’32”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 68°46’53” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 107.19 FEET;

THENCE NORTH 01°14’10” EAST 90.31 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 35.00 FEET, A CENTRAL ANGLE OF 69°24’13”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 87°59’26” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 42.40 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 365.00 FEET, A CENTRAL ANGLE OF 09°29’47”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 20°08’21” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 60.50 FEET;

 

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THENCE NORTH 81°57’31” EAST 31.42 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 385.00 FEET, A CENTRAL ANGLE OF 05°49’26”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 05°08’41” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 39.13 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 43.00 FEET, A CENTRAL ANGLE OF 17°10’23”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 00°40’45” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.89 FEET;

THENCE SOUTH 67°00’52” EAST 15.55 FEET;

THENCE SOUTH 88°37’20” EAST 143.54 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 44.00 FEET, A CENTRAL ANGLE OF 27°03’59”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 04°30’55” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 20.79 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE , CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 36.00 FEET, A CENTRAL ANGLE OF 31°43’57”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 29°09’16” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 19.94 FEET TO THE BEGINNING OF A NON-TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 435.00 FEET, A CENTRAL ANGLE OF 12°24’36”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 07°11’21” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 94.22 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 455.00 FEET, A CENTRAL ANGLE OF 09°44’50”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 19°35’57” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 77.41 FEET;

THENCE SOUTH 62°30’28” EAST 50.13 FEET;

THENCE SOUTH 60°07’37” EAST 18.81 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 35.54 FEET, A CENTRAL ANGLE OF 23°56’30”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 37°39’02” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 14.85 FEET TO THE POINT OF BEGINNING.

 

SAID LAND IS ALSO SHOWN AS JOINT VALET PARCEL ON THAT CERTAIN RECORD OF SURVEY FILED IN FILE 177 OF SURVEYS, PAGE 0065, OFFICIAL RECORDS.

PARCEL III:

THAT PORTION OF LOT ONE (1) OF “TI/MIRAGE ONE LOT COMMERCIAL SUBDIVISION”, A COMMERCIAL SUBDIVISION, ON FILE IN BOOK 141 OF PLATS, PAGE 55 IN THE CLARK COUNTY RECORDER’S OFFICE, LYING WITHIN THE EAST HALF (E 1/2) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SAID SECTION 17;

THENCE NORTH 53°33’40” WEST 828.35 FEET TO AN ALUMINUM CAP, PLS #6030 AT THE CENTER OF THE CUL-DE-SAC OF PERSHING AVENUE;

THENCE SOUTH 00°32’30” EAST 45.50 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF PERSHING AVENUE AND THE POINT OF BEGINNING;

THENCE SOUTH 33°06’16” WEST, DEPARTING SAID RIGHT-OF-WAY LINE, 24.72 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 1275.46 FEET, A CENTRAL ANGLE OF 04°52’52”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 06°50’26” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 108.66 FEET;

 

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THENCE NORTH 89°17’23” WEST 143.71 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 228.35 FEET, A CENTRAL ANGLE OF 20°36’47”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 03°55’27” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 82.15 FEET;

THENCE NORTH 62°18’55” WEST 307.43 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 43.38 FEET, A CENTRAL ANGLE OF 44°15’53”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 24°59’53” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 33.51 FEET TO THE EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED BY THOSE CERTAIN DOCUMENTS RECORDED IN BOOK 900501 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00870 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT FOUR (4) COURSES: NORTH 70°41’14” EAST 4.22 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE EAST, HAVING A RADIUS OF 35.00 FEET, A CENTRAL ANGLE OF 47°55’52”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 70°40’14” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 29.28 FEET;

THENCE NORTH 28°36’06” EAST 257.71 FEET;

THENCE NORTH 27°38’40” EAST 227.58 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF SPRING MOUNTAIN ROAD AS DEDICATED BY THOSE CERTAIN DOCUMENTS RECORDED IN BOOK 980415 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00154 IN CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEING THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 30.00 FEET AND A CENTRAL ANGLE OF 67°45’49;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 35.48 FEET;

THENCE SOUTH 84°35’31” EAST 337.34 FEET;

THENCE SOUTH 00°25’43” WEST 292.58 FEET TO THE RIGHT-OF-WAY LINE OF BLACK CANYON AVENUE AND THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 45.50 FEET, A CENTRAL ANGLE OF 73°47’02”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 66°18’24” WEST;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 58.59 FEET;

THENCE SOUTH 50°05’26” EAST 24.08 FEET;

THENCE SOUTH 00°48’59” WEST, DEPARTING SAID RIGHT-OF-WAY LINE, 150.00 FEET TO THE NORTH RIGHT-OF-WAY LINE OF PERSHING AVENUE;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: SOUTH 65°38’25” WEST 7.82 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE EAST, HAVING A RADIUS OF 45.50 FEET AND A CENTRAL ANGLE OF 156°10’55”;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 124.03 FEET TO THE POINT OF BEGINNING;

SAID LAND IS ALSO SHOWN AS JOINT EMPLOYEE GARAGE PARCEL ON THAT CERTAIN RECORD OF SURVEY FILED IN FILE 177 OF SURVEYS, PAGE 0066, OFFICIAL RECORDS.

THE ABOVE PARCEL I, PARCEL II AND PARCEL III ARE ALSO DESCRIBED AS FOLLOWS :

THAT PORTION OF BOOK 19880407, INSTRUMENT 00313 AND BOOK 19901004, INSTRUMENT 00062 IN BOOK OF DEEDS, ON FILE IN THE CLARK COUNTY RECORDER’S OFFICE, LOCATED WITHIN THE WEST HALF (W 1/2) OF SECTION 16 AND THE EAST HALF (E 1/2) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 16;

THENCE ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 16 NORTH 00°24’19” WEST 493.27 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 63°50’11” EAST 94.06 FEET;

 

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THENCE SOUTH 33°16’55” WEST 26.46 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4.60 FEET, A CENTRAL ANGLE OF 92°13’00”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 08°52’21” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 7.40 FEET;

THENCE SOUTH 01°21’09” WEST 36.82 FEET;

THENCE SOUTH 01°32’41” WEST 53.52 FEET TO THE POINT OF CUSP OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 35.00 FEET, A CENTRAL ANGLE OF 64°55’01” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 87°31’21” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 39.66 FEET TO THE BEGINNING OF A NON-TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 365.00 FEET, A CENTRAL ANGLE OF 09°29’47”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 20°08’21” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 60.50 FEET;

THENCE NORTH 81°57’31” EAST 31.42 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 385.00 FEET, A CENTRAL ANGLE OF 05°49’26”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 05°08’41” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 39.13 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 43.00 FEET, A CENTRAL ANGLE OF 17°10’23”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 00°40’45” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.89 FEET;

THENCE SOUTH 67°00’52” EAST 15.55 FEET;

THENCE SOUTH 88°37’20” EAST 143.54 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 44.00 FEET, A CENTRAL ANGLE OF 27°03’59”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 04°30’55” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 20.79 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 36.00 FEET, A CENTRAL ANGLE OF 31°43’57”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 29°09’16” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 19.94 FEET TO THE BEGINNING OF A NON-TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 435.00 FEET, A CENTRAL ANGLE OF 12°24’36”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 07°11’21” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 94.22 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 455.00 FEET, A CENTRAL ANGLE OF 09°44’50”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 19°35’57” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 77.41 FEET;

THENCE SOUTH 62°30’28” EAST 50.13 FEET;

THENCE SOUTH 60°07’37” EAST 18.81 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 35.54 FEET, A CENTRAL ANGLE OF 23°56’30”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 37°39’02” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 14.85 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD AS DEDICATED BY THOSE CERTAIN DOCUMENTS RECORDED IN BOOK 931020 AS INSTRUMENT 01511 OF OFFICIAL RECORDS IN THE CLARK COUNTY, RECORDER’S OFFICE, CLARK COUNTY, NEVADA, FROM WHICH A LAS VEGAS BOULEVARD RIGHT-OF-WAY BRASS CAP NO. 029Y, AS SHOWN BY THAT CERTAIN MAP IN FILE 169, PAGE 20 OF SURVEYS IN CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEARS NORTH 31°42’48” EAST 217.60 FEET;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE FOLLOWING TWENTY THREE (23) COURSES;

1)

SOUTH 28°49’54” WEST 8.60 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE WEST, HAVING A RADIUS OF 50.00 FEET, A CENTRAL ANGLE OF 52°41’26”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 66°21’08” EAST;

2)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 45.98 FEET;

3)

THENCE SOUTH 29°02’34” WEST, 60.11 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWEST, HAVING A RADIUS OF 50.00 FEET AND A CENTRAL ANGLE OF 07°07’30”;

 

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4)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 6.22 FEET;

5)

THENCE SOUTH 36°10’04” WEST, 87.41 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 100.00 FEET AND A CENTRAL ANGLE OF 07°07’30”;

6)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 12.44 FEET;

7)

THENCE SOUTH 29°02’34” WEST, 146.78 FEET TO A POINT FROM WHICH A LAS VEGAS BOULEVARD RIGHT-OF-WAY BRASS CAP NO. 027Y, AS SHOWN BY THAT CERTAIN MAP IN FILE 169, PAGE 20 OF SURVEYS IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEARS NORTH 56°46’46 WEST 8.60 FEET AND THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 75.00 FEET AND A CENTRAL ANGLE OF 49°15’58”;

8)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 64.49 FEET;

9)

THENCE SOUTH 11°41’28” EAST, 22.85 FEET;

10)

THENCE SOUTH 24°39’16” WEST 29.31 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 210.00 FEET AND A CENTRAL ANGLE OF 04°36’48”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 24°39’17” EAST;

11)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 16.91 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 8.00 FEET, A CENTRAL ANGLE OF 86°03’20” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 29°16’06” EAST;

12)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.02 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4066.00 FEET, A CENTRAL ANGLE OF 03°11’04” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 64°40’34” WEST;

13)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 225.98 FEET TO THE BEGINNING OF A NON-TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 1000.00 FEET, A CENTRAL ANGLE OF 05°04’14” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 67°51’39” WEST;

14)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 88.50 FEET;

15)

THENCE SOUTH 17°04’07” WEST, 271.00 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4054.00 FEET AND A CENTRAL ANGLE OF 02°20’57”;

16)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 166.22 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 8.00 FEET, A CENTRAL ANGLE OF 91°48’30” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 75°16’49” EAST;

17)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.82 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 200.00 FEET, A CENTRAL ANGLE OF 02°20’23” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 16°31’41” WEST;

18)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARCH LENGTH OF 8.17 FEET;

19)

THENCE SOUTH 18°52’04” WEST 33.74 FEET;

20)

THENCE SOUTH 45°12’14” WEST 19.51 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 61.24 FEET, A CENTRAL ANGLE OF 60°48’08” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 45°12’14” EAST;

21)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 64.99 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 248.30 FEET, A CENTRAL ANGLE OF 06°46’08” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 73°59’38” WEST;

22)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 29.33 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 512.04 FEET, A CENTRAL ANGLE OF 02°59’41” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 80°45’46” EAST;

23)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 26.76 FEET;

THENCE DEPARTING SAID RIGHT-OF-WAY LINE, NORTH 88°44’46” WEST 138.91 FEET;

THENCE NORTH 88°51’07” WEST 1924.03 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 45.00 FEET, A CENTRAL ANGLE OF 44°33’49” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 45°13’22” WEST, SAID POINT BEING ON THE

 

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EAST RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE AND INDUSTRIAL ROADS AS DEDICATED IN DOCUMENT 940831:01339 OF OFFICIAL RECORDS IN THE CLARK COUNTY NEVADA RECORDER’S OFFICE;

THENCE ALONG SAID EAST RIGHT-OF-WAY LINE THE FOLLOWING NINE (9) COURSES:

1)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 35.00 FEET;

2)

THENCE NORTH 00°12’49” WEST, 137.18 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 40.00 FEET AND A CENTRAL ANGLE OF 91°31’55”;

3)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 63.90 FEET;

4)

THENCE NORTH 00°12’49” WEST 46.19 FEET;

5)

THENCE NORTH 35°46’51” EAST 5.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 75.00 FEET, A CENTRAL ANGLE OF 68°15’46” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 35°46’42” WEST;

6)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 89.36 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 500.00 FEET, A CENTRAL ANGLE OF 04°42’30” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 75°57’32” WEST;

7)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 41.09 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 143.00 FEET, A CENTRAL ANGLE OF 08°20’29” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 71°15’02” WEST;

8)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 20.82 FEET;

9)

THENCE NORTH 27°05’27” EAST, 389.60 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 6000.00 FEET, A CENTRAL ANGLE OF 00°28’42” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 63°51’57” WEST;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 0496:0399453 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, THE FOLLOWING THREE (3) COURSES:

1)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 50.09 FEET;

2)

NORTH 27°37’16” EAST 228.55 FEET;

3)

THENCE NORTH 89°12’43” WEST, 9.14 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 6000.00 FEET, A CENTRAL ANGLE OF 00°22’57” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 65°32’14” EAST, SAID POINT ALSO BEING ON THE EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN THE AFOREMENTIONED DOCUMENT 940831:01339 OF OFFICIAL RECORDS;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD THE FOLLOWING TWO (2) COURSES:

1)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 40.06 FEET;

2)

THENCE NORTH 24°04’49” EAST ALONG SAID RIGHT-OF-WAY, 142.71 FEET;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 940831:01338 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, THE FOLLOWING EIGHT (8) COURSES:

1)

NORTH 24°06’50” EAST, 76.42 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 40.00 FEET AND A CENTRAL ANGLE OF 90°36’48”;

2)

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 63.26 FEET;

3)

THENCE NORTH 24°43’38” EAST 32.50 FEET;

4)

THENCE NORTH 65°16’22” WEST 1.55 FEET;

5) THENCE NORTH 24°43’38” EAST 32.50 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 40.00 FEET, A CENTRAL ANGLE OF 89°23’12” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 24°43’38” WEST;
6) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 62.40 FEET;
7) THENCE NORTH 24°06’50” EAST 30.30 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 3000.00 FEET, A CENTRAL ANGLE OF 03°53’45” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 65°53’11” WEST;
8) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 203.99 FEET;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 900501:00870 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA

 

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RECORDER’S OFFICE, NORTH 70°41’14” EAST, 17.49 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 35.00 FEET, A CENTRAL ANGLE OF 47°55’52” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 70°40’14” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 29.28 FEET;

THENCE NORTH 28°36’06” EAST 257.71 FEET;

THENCE NORTH 27°38’40” EAST 227.58 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF SPRING MOUNTAIN ROAD AS DEDICATED BY THOSE CERTAIN DOCUMENTS RECORDED IN BOOK 980415 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00154 IN CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEING THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 30.00 FEET AND A CENTRAL ANGLE OF 67°45’49”;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 35.48 FEET; THENCE SOUTH 84°35’31” EAST, 337.34 FEET;

THENCE SOUTH 00°25’43” WEST 292.58 FEET TO THE RIGHT-OF-WAY LINE OF BLACK CANYON AVENUE AND THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 45.50 FEET, A CENTRAL ANGLE OF 73°47’02” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 66°18’24” WEST;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 58.59 FEET;

THENCE SOUTH 50°05’26” EAST, 24.08 FEET;

THENCE SOUTH 00°48’59” WEST, DEPARTING SAID RIGHT-OF-WAY LINE, 150.00 FEET TO THE NORTH RIGHT-OF-WAY LINE OF PERSHING AVENUE;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: SOUTH 65°38’25” WEST 7.82 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE EAST, HAVING A RADIUS OF 45.50 FEET AND A CENTRAL ANGLE OF 224°28’15”;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 178.26 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 25.00 FEET, A CENTRAL ANGLE OF 69°47’28” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 68°49’50” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 30.45 FEET;

THENCE SOUTH 89°11’01” EAST 61.01 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 70.00 FEET AND A CENTRAL ANGLE OF 90°59’03”;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 111.16 FEET TO A POINT OF CUSP ON THE EAST RIGHT-OF-WAY LINE OF VEGAS PLAZA DRIVE AS SHOWN BY MAP THEREOF IN BOOK 46, PAGE 64 OF PLATS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE;

THENCE SOUTH 00°12’48” EAST 39.29 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 21.50 FEET, A CENTRAL ANGLE OF 55°05’49”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 54°34’21” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 20.67 FEET;

THENCE SOUTH 88°49’38” EAST 99.04 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 449.10 FEET, A CENTRAL ANGLE OF 04°47’17”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 11°59’48” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 37.53 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 21.10 FEET, A CENTRAL ANGLE OF 49°21’12”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 16°49’25” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 18.18 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 10.70 FEET, A CENTRAL ANGLE OF 27°53’16”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 32°29’52” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 5.21 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 12.70 FEET, A CENTRAL ANGLE OF 23°06’26”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 04°37’48” EAST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 5.12 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 68.60 FEET, A

 

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CENTRAL ANGLE OF 41°03’53”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 13°26’43” WEST; THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 49.17 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 52.50 FEET, A CENTRAL ANGLE OF 43°00’24”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 23°03’16” WEST; THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 39.41 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 177.80 FEET, A CENTRAL ANGLE OF 19°15’45”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 15°57’04” WEST; THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 59.78 FEET; THENCE SOUTH 88°48’48” EAST 117.50 FEET; THENCE SOUTH 63°50’11” EAST 23.91 FEET TO THE POINT OF BEGINNING.

(THIS DESCRIPTION DOES NOT REPRESENT LEGAL TRACTS OF LAND AND IS NOT TO BE USED TO SUBDIVIDE LAND CONTRARY TO THE LAW AS ESTABLISHED AND CODIFIED IN N.R.S. 278.)

PREPARED BY: RANDY A. OXBORROW

PROFESSIONAL LAND SURVEYOR

NEVADA CERTIFICATE NUMBER 10119

EXPIRATION DATE: DECEMBER 31, 2009

LOCHSA SURVEYING

6345 SOUTH JONES BLVD., SUITE 200

LAS VEGAS, NV 89118

PH: (702) 365-9312

FX: (702) 320-1769

PARCEL IV:

PERPETUAL NON-EXCLUSIVE EASEMENTS FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS AS SET FORTH IN THAT CERTAIN “DECLARATION OF RECIPROCAL EASEMENTS AND OPTION TO PURCHASE TENANCY-IN-COMMON INTEREST”, RECORDED MARCH 20, 2009 IN BOOK 20090320 AS DOCUMENT NO. 00883, OFFICIAL RECORDS.

 

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Monte Carlo Hotel and Casino – 3770 Las Vegas Blvd. South, Las Vegas, NV

PARCEL I:

LOT ONE (1) OF VICTORIA PARTNERS, A COMMERCIAL SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA OF OFFICIAL RECORDS.

EXCEPTING THEREFROM THE FOLLOWING PARCEL:

(PARK PARCEL (SOUTH)

BEING A PORTION OF LOT 1 OF VICTORIA PARTNERS, A COMMERCIAL

SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50

IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING

WITHIN THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20, TOWNSHIP 21

SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY

DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 1, SAID POINT LIES AT

THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF FRANK SINATRA

DRIVE WITH THE NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE;

THENCE ALONG THE BOUNDARY LINE OF SAID LOT 1, BEING THE NORTHERLY

RIGHT-OF-WAY LINE OF SAID TROPICANA AVENUE, NORTH 89°03’52” EAST, A

DISTANCE OF 638.46 FEET TO THE SOUTHWEST CORNER OF THAT LAND

DESCRIBED IN DOCUMENT RECORDED IN BOOK 950106, AS INSTRUMENT NO.

00827 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA; THENCE DEPARTING

SAID NORTHERLY RIGHT-OF-WAY LINE, AND ALONG THE WESTERLY LINE

THEREOF, NORTH 00°08’05” EAST, A DISTANCE OF 667.93 FEET TO THE

NORTHWEST CORNER THEREOF; THENCE ALONG THE NORTHERLY LINE

THEREOF, NORTH 89°34’07” EAST, A DISTANCE OF 319.07 FEET TO THE POINT OF

BEGINNING , SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE

HAVING A RADIUS OF 102.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH

80°09’ 17” EAST; THENCE DEPARTING SAID NORTHERLY LINE AND BOUNDARY

LINE, NORTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT

CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 37°45’18”, AN ARC

LENGTH OF 67.21 FEET; THENCE NORTH 47°36’0l” WEST, A DISTANCE OF 88.72

FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 136.00

FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT

CONCAVE EASTERLY THROUGH A CENTRAL ANGLE OF 67°49’44”, AN ARC

LENGTH OF 161.00 FEET; THENCE NORTH 20°13’43” EAST, A DISTANCE OF 47.94

FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 32.00

FEET; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT

CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 98°53’27”, AN ARC

LENGTH OF 55.23 FEET TO A POINT OF CUSP WITH A CURVE HAVING A RADIUS OF

278.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 11°20’16” WEST;

THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT

CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 19°28’ 11”, AN ARC

LENGTH OF 94.47 FEET; THENCE SOUTH 59°11’33” EAST, A DISTANCE OF 107.75

FEET; THENCE SOUTH 65°51’08” EAST, A DISTANCE OF 106.30 FEET TO THE

BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 345.00 FEET; THENCE

EASTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE NORTHERLY

THROUGH A CENTRAL ANGLE OF 45°37’24”, AN ARC LENGTH OF 274.72 FEET;

THENCE NORTH 68°31’28” EAST, A DISTANCE OF 41.26 FEET; THENCE NORTH

64°33’49” EAST, A DISTANCE OF 87.56 FEET TO THE BEGINNING OF A TANGENT

CURVE HAVING A RADIUS OF 335.00 FEET; THENCE EASTERLY ALONG THE ARC

 

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OF SAID CURVE TO THE RIGHT CONCAVE SOUTHERLY THROUGH A CENTRAL ANGLE OF 25°30’45”, AN ARC LENGTH OF 149.17 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 108.39 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 32.00 FEET; THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHERLY THROUGH A CENTRAL ANGLE OF 26°29’04”, AN ARC LENGTH OF 14.79 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD, BEING ALSO THE BOUNDARY LINE OF THE AFORESAID LOT 1: THENCE ALONG SAID WESTERLY RIGHT-OF- WAY LINE AND EASTERLY LOT LINE, SOUTH 00°02’00” EAST, A DISTANCE OF 137.20 FEET; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY LINE AND CONTINUING ALONG SAID BOUNDARY, SOUTH 89°58’00” WEST, A DISTANCE OF 600.00 FEET; THENCE SOUTH 00°02’00” EAST, A DISTANCE OF 156.56 FEET; THENCE SOUTH 89°34’07” WEST, A DISTANCE OF 189.05 FEET TO THE POINT OF BEGINNING.

THE ABOVE METES AND BOUNDS DESCRIPTION PREVIOUSLY APPEARED IN THAT CERTAIN QUITCLAIM DEED RECORDED SEPTEMBER 26, 2014 IN BOOK 20140926 AS DOCUMENT NO. 0001542, AND IS SHOWN ON THE MAP ON FILE IN FILE 192 OF SURVEYS, PAGE 83 AS THE “PARK PARCEL (SOUTH)”.

FURTHER EXCEPTING THEREFROM THE FOLLOWING PARCEL:

(PARK PARCEL (NORTH)

BEING A PORTION OF LOT 1 OF VICTORIA PARTNERS, A COMMERCIAL

SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50

IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING

WITHIN THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20, TOWNSHIP 21 SOUTH,

RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY

DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 1, SAID POINT LIES AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE WITH THE NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 1, BEING THE NORTHERLY RIGHT-OF-WAY LINE OF SAID TROPICANA AVENUE, NORTH 89°03’52” EAST, A DISTANCE OF 638.46 FEET TO THE SOUTHWEST CORNER OF THAT LAND DESCRIBED IN DOCUMENT RECORDED IN BOOK 950106, AS INSTRUMENT NO 00827 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA; THENCE DEPARTING SAID NORTHERLY RIGHT-OF-WAY LINE, AND ALONG THE WESTERLY LINE THEREOF, NORTH • 00°08’05” EAST, A DISTANCE OF 667.93 FEET TO THE NORTHWEST CORNER THEREOF; THENCE ALONG THE NORTHERLY LINE THEREOF, NORTH 89°34’07” EAST, A DISTANCE OF 508.11 FEET; THENCE NORTH 00°02’00” WEST, A DISTANCE OF 156.56 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 600.00 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND BOUNDARY, NORTH 00°02’00” WEST, A DISTANCE OF 228.46 FEET TO THE POINT OF BEGINNING , SAID POINT BEING THE BEGINNING OF A NON TANGENT CURVE HAVING A RADIUS OF 32.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 49°56’48” EAST; THENCE DEPARTING SAID BOUNDARY LINE AND WESTERLY RIGHT-OF-WAY LINE, SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 50°02’55”, AN ARC LENGTH OF 27.95 FEET; THENCE NORTH 89°53’54” WEST, A DISTANCE OF 86.21 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 302.00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE SOUTHEASTERLY THROUGH A CENTRAL ANGLE OF 37°45’03”, AN ARC LENGTH OF 198.98 FEET TO THE BEGINNING OF A REVERSE CURVE HAVING A RADIUS OF 290.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 37°38’57” EAST;

 

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THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 16°10’26”, AN ARC LENGTH OF 81.86 FEET; THENCE SOUTH 68°31’28” WEST, A DISTANCE OF 37.87 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 297.00 FEET; THENCE WESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHERLY THROUGH A CENTRAL ANGLE OF 52°16’58”, AN ARC LENGTH OF 271.01 FEET; THENCE NORTH 59°11’33” WEST, A DISTANCE OF 155.80 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 30.00 FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE EASTERLY THROUGH A CENTRAL ANGLE OF 78°39’12”, AN ARC LENGTH OF 41.18 FEET; THENCE NORTH 19°27’38” EAST, A DISTANCE OF 17.63 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 100.16 FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE WESTERLY THROUGH A CENTRAL ANGLE OF 21°39’10”, AN ARC LENGTH OF 37.85 FEET; THENCE NORTH 60°04’41” EAST, A DISTANCE OF 50.43 FEET; THENCE SOUTH 29°55’19” EAST, A DISTANCE OF 124.15 FEET; THENCE NORTH 60°04’41”EAST, A DISTANCE OF 49.58 FEET; THENCE NORTH 89°50’13” EAST, A DISTANCE OF 204.74 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 33.50 FEET; THENCE SOUTH 89°55’26” EAST A DISTANCE OF 122.35 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 10.66 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 30.81 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 10.80 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 124.82 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 17.73 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 25.07 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 16.50 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 16.05 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 16.05 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44 ” EAST, A DISTANCE OF 17.33 FEET; THENCE NORTH 00°02’16” EAST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 32.17 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 19.91 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 21.60 FEET; THENCE NORTH 62°04’ 12” EAST, A DISTANCE OF 19.54 FEET; THENCE NORTH 33°04’56” EAST, A DISTANCE OF l.16 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 21.73 FEET TO THE AFORESAID WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD AND BOUNDARY LINE; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND BOUNDARY LINE, SOUTH 00°02’00” EAST, A DISTANCE OF 31.96 FEET TO THE POINT OF BEGINNING.

THE ABOVE METES AND BOUNDS DESCRIPTION PREVIOUSLY APPEARED IN THAT CERTAIN QUITCLAIM DEED RECORDED SEPTEMBER 4, 2015 IN BOOK 20150904 AS DOCUMENT NO. 0002036, AND IS SHOWN ON THE MAP ON FILE IN FILE 192 OF SURVEYS, PAGE 83 AS THE “PARK PARCEL (NORTH)”.

AND FURTHER EXCEPTING THEREFROM THE FOLLOWING PARCEL:

(ARENA PARCEL)

BEING A PORTION OF LOT 1 OF VICTORIA PARTNERS, A COMMERCIAL SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE SOUTHEAST QUARTER (SE ¼) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 1, SAID POINT LIES AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF FRANK SINATRA

 

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DRIVE WITH THE NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 1140.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 80°16’54” EAST; THENCE ALONG THE WESTERLY LINE OF SAID LOT 1, BEING THE EASTERLY RIGHT-OF-WAY LINE OF SAID FRANK SINATRA DRIVE, NORTHERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE WESTERLY THROUGH A CENTRAL ANGLE OF 31°00’22”, AN ARC LENGTH OF 616.92 FEET; THENCE CONTINUING ALONG SAID WESTERLY LOT LINE AND EASTERLY RIGHT-OF-WAY LINE, NORTH 21°17’15” WEST, A DISTANCE OF 167.74 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 1060.00 FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE EASTERLY THROUGH A CENTRAL ANGLE OF 08°12’53”, AN ARC LENGTH OF 151.98 FEET; THENCE DEPARTING SAID WESTERLY LOT LINE AND EASTERLY RIGHT-OF-WAY LINE, NORTH 76°55’37” EAST, A DISTANCE OF 16.18 FEET TO THE BEGINNING OF A NONTANGENT CURVE HAVING A RADIUS OF 30.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 74°18’01” WEST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHEASTERLY THROUGH A CENTRAL ANGLE OF 105°11’59”, AN ARC LENGTH OF 55.08 FEET; THENCE NORTH 89°30’00” EAST, A DISTANCE OF 578.27 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 340.00 FEET; THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE NORTHERLY THROUGH A CENTRAL ANGLE OF 29°46’40”, AN ARC LENGTH OF 176.71 FEET TO THE BEGINNING OF A REVERSE CURVE HAVING A RADIUS OF 278.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 30°16’18” WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHERLY THROUGH A CENTRAL ANGLE OF 41°36’34”, AN ARC LENGTH OF 201.89 FEET TO THE BEGINNING OF A COMPOUND CURVE HAVING A RADIUS OF 32.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 11°20’16” EAST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 98°53’27”, AN ARC LENGTH OF 55.23 FEET; THENCE SOUTH 20°13’43” WEST, A DISTANCE OF 47.94 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 136.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE NORTHEASTERLY THROUGH A CENTRAL ANGLE OF 67°49’44”, AN ARC LENGTH OF 161.00 FEET; THENCE SOUTH 47°36’01” EAST, A DISTANCE OF 88.72 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 102.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 37°45’18”, AN ARC LENGTH OF 67.21 FEET TO THE NORTHERLY LINE OF THAT LAND DESCRIBED IN DOCUMENT RECORDED IN BOOK 950106, AS INSTRUMENT NO. 00827 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA; THENCE ALONG SAID NORTHERLY LINE, SOUTH 89°34’07” WEST, A DISTANCE OF 319.07 FEET TO THE NORTHWEST CORNER THEREOF; THENCE ALONG THE WESTERLY LINE THEREOF, SOUTH 00°08’05” WEST, A DISTANCE OF 667.93 FEET TO THE AFORESAID NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE; THENCE DEPARTING SAID WESTERLY LINE AND ALONG SAID NORTHERLY RIGHT-OF-WAY LINE, SOUTH 89°03’52” WEST, A DISTANCE OF 638.46

 

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FEET TO THE POINT OF BEGINNING.

THE ABOVE METES AND BOUNDS DESCRIPTION PREVIOUSLY APPEARED IN THAT CERTAIN QUITCLAIM DEED RECORDED AUGUST 20, 2014 IN BOOK 20140820 AS DOCUMENT NO. 0002234, AND IS SHOWN ON THAT MAP ON FILE IN FILE 192 OF SURVEYS, PAGE 84, AS “ARENA PARCEL”.

PARCEL II:

(PARK PARCEL (NORTH)

 

BEING A PORTION OF LOT 1 OF VICTORIA PARTNERS, A COMMERCIAL

SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50

IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING

WITHIN THE SOUTHEAST QUARTER (SE ¼) OF SECTION 20, TOWNSHIP 21 SOUTH,

RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY

DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 1, SAID POINT LIES AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE WITH THE NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 1, BEING THE NORTHERLY RIGHT-OF-WAY LINE OF SAID TROPICANA AVENUE, NORTH 89°03’52” EAST, A DISTANCE OF 638.46 FEET TO THE SOUTHWEST CORNER OF THAT LAND DESCRIBED IN DOCUMENT RECORDED IN BOOK 950106, AS INSTRUMENT NO 00827 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA; THENCE DEPARTING SAID NORTHERLY RIGHT-OF-WAY LINE, AND ALONG THE WESTERLY LINE THEREOF, NORTH 00°08’05” EAST, A DISTANCE OF 667.93 FEET TO THE NORTHWEST CORNER THEREOF; THENCE ALONG THE NORTHERLY LINE THEREOF, NORTH 89°34’07” EAST, A DISTANCE OF 508.11 FEET; THENCE NORTH 00°02’00” WEST, A DISTANCE OF 156.56 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 600.00 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND BOUNDARY, NORTH 00°02’00” WEST, A DISTANCE OF 228.46 FEET TO THE POINT OF BEGINNING , SAID POINT BEING THE BEGINNING OF A NON TANGENT CURVE HAVING A RADIUS OF 32.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 49°56’48” EAST; THENCE DEPARTING SAID BOUNDARY LINE AND WESTERLY RIGHT-OF-WAY LINE, SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 50°02’55”, AN ARC LENGTH OF 27.95 FEET; THENCE NORTH 89°53’54” WEST, A DISTANCE OF 86.21 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 302.00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE SOUTHEASTERLY THROUGH A CENTRAL ANGLE OF 37°45’03”, AN ARC LENGTH OF 198.98 FEET TO THE BEGINNING OF A REVERSE CURVE HAVING A RADIUS OF 290.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 37°38’57” EAST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 16°10’26”, AN ARC LENGTH OF 81.86 FEET; THENCE SOUTH 68°31’28” WEST, A DISTANCE OF 37.87 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 297.00 FEET; THENCE WESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHERLY THROUGH A CENTRAL ANGLE OF 52°16’58”, AN ARC LENGTH OF 271.01 FEET; THENCE NORTH 59°11’33” WEST, A DISTANCE OF 155.80 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 30.00 FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE EASTERLY THROUGH A CENTRAL ANGLE OF 78°39’12”, AN ARC LENGTH OF 41.18 FEET; THENCE NORTH 19°27’38” EAST, A DISTANCE OF 17.63 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 100.16

 

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FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE WESTERLY THROUGH A CENTRAL ANGLE OF 21°39’10”, AN ARC LENGTH OF 37.85 FEET; THENCE NORTH 60°04’41” EAST, A DISTANCE OF 50.43 FEET; THENCE SOUTH 29°55’19” EAST, A DISTANCE OF 124.15 FEET; THENCE NORTH 60°04’41”EAST, A DISTANCE OF 49.58 FEET; THENCE NORTH 89°50’13” EAST, A DISTANCE OF 204.74 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 33.50 FEET; THENCE SOUTH 89°55’26” EAST A DISTANCE OF 122.35 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 10.66 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 30.81 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 10.80 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 124.82 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 17.73 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 25.07 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 16.50 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 16.05 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 16.50 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44 ” EAST, A DISTANCE OF 17.33 FEET; THENCE NORTH 00°02’16” EAST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 32.17 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 19.91 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 21.60 FEET; THENCE NORTH 62°04’12” EAST, A DISTANCE OF 19.54 FEET; THENCE NORTH 33°04’56” EAST, A DISTANCE OF l.16 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 21.73 FEET TO THE AFORESAID WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD AND BOUNDARY LINE; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND BOUNDARY LINE, SOUTH 00°02’00” EAST, A DISTANCE OF 31.96 FEET TO THE POINT OF BEGINNING.

THE ABOVE METES AND BOUNDS DESCRIPTION APPEARED IN THAT CERTAIN QUITCLAIM DEED RECORDED SEPTEMBER 4, 2015 IN BOOK 20150904 AS DOCUMENT NO. 0002036, AND IS SHOWN ON THE MAP ON FILE IN FILE 192 OF SURVEYS, PAGE 83 AS THE “PARK PARCEL (NORTH).”

PARCEL III:

A PERPETUAL, NON-EXCLUSIVE EASEMENT FOR THE INSTALLATION, USE, MAINTENANCE, REPAIR AND REPLACEMENT OF ANY AND ALL WATER, SEWER, GAS, TELEPHONE, ELECTRICAL AND OTHER UTILITY PIPES, LINES, CABLES AND OTHER INFRASTRUCTURE AS SET FORTH IN THAT CERTAIN RECIPROCAL EASEMENT AND ACCESS AGREEMENT, RECORDED MARCH 27, 2009 IN BOOK 20090327 AS DOCUMENT NO. 0000725, OFFICIAL RECORDS.

PARCEL IV:

A PERMANENT, NON-EXCLUSIVE EASEMENT ON, OVER, AND ACROSS THE JOINT ROADWAY EASEMENT AREA FOR THE PURPOSE OF VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS AS SET FORTH IN THAT CERTAIN RECIPROCAL EASEMENT AGREEMENT FOR JOINT ROADWAY, RECORDED MARCH 27, 2009 IN BOOK 20090327 AS DOCUMENT NO. 0000726, OFFICIAL RECORDS.

PARCEL V:

A PERMANENT, NON-EXCLUSIVE EASEMENT ON, OVER AND ACROSS THE EMPLOYEE ACCESS AREAS FOR THE PURPOSE OF PEDESTRIAN INGRESS AND EGRESS AS SET FORTH IN THAT CERTAIN FRANK SINATRA GARAGE PARKING AND ACCESS EASEMENT AGREEMENT RECORDED MARCH 27, 2009 IN BOOK 20090327 AS DOCUMENT NO. 0000723, OFFICIAL RECORDS, AS AMENDED BY

 

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INSTRUMENT RECORDED NOVEMBER 21, 2014 IN BOOK 20141121 AS DOCUMENT NO. 0001527, OFFICIAL RECORDS

 

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New York-New York Hotel and Casino - 3790 Las Vegas Blvd. South, Clark County, NV

PARCEL I :

THAT PORTION OF THE NORTH HALF (N  1 ⁄ 2 ) OF THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M., DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT IN THE WESTERLY BOUNDARY OF U.S. HIGHWAY NO. 91, FROM WHICH THE SOUTHEAST CORNER OF SAID SECTION 20 BEARS SOUTH 10º35’48” EAST, A DISTANCE OF 822.32 FEET, SAID POINT BEING THE SOUTHEAST CORNER OF THAT PARCEL OF LAND CONVEYED TO MICHELE TERLIZZI, ET AL, BY DEED RECORDED JULY 30, 1953 AS DOCUMENT NO. 410028 OF CLARK COUNTY, NEVADA RECORDS; THENCE SOUTH 89º58’00” WEST, ALONG THE SOUTH LINE OF SAID PARCEL, 600.00 FEET; THENCE ALONG THE SOUTHERLY PROLONGATION OF THE WEST LINE OF SAID PARCEL SOUTH 0º02’00” EAST, 156.56 FEET, MORE OR LESS, TO A POINT IN THE SOUTHERLY BOUNDARY LINE OF THAT PARCEL OF LAND CONVEYED TO MAJOR A. RIDDLE, ET AL, BY DEED RECORDED DECEMBER 30, 1960 AS DOCUMENT NO. 222929 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG SAID SOUTHERLY BOUNDARY LINE NORTH 89º58’00” EAST (NORTH 89º34’07” EAST MEASURED), 600.02 FEET, MORE OR LESS, TO A POINT IN THE AFOREMENTIONED WEST LINE OF U.S. HIGHWAY NO. 91; THENCE ALONG SAID LAST MENTIONED WEST LINE NORTH 0º02’00” WEST, 152.39 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.

AS DISCLOSED ON THAT CERTAIN RECORD OF SURVEY IN FILE 73 OF SURVEYS, PAGE 82 AND ALSO SHOWN ON THE REVISED RECORD OF SURVEY IN FILE 75, PAGE 15.

PARCEL II :

THAT PORTION OF SECTIONS 20 AND 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M., MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE NORTHEAST CORNER OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SAID SECTION 29; THENCE SOUTH 89º03’00” WEST ALONG THE NORTH LINE THEREOF A DISTANCE OF 150.29 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF LAS VEGAS BOULEVARD SOUTH (U.S. HIGHWAY 91-93-466) SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE SOUTH 00º17’00” EAST ALONG SAID WESTERLY RIGHT OF WAY LINE A DISTANCE OF 13.15 FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 93.50 FEET; THENCE FROM A RADIAL LINE THAT BEARS SOUTH 45º06’47” EAST, SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 44º08’00” AN ARC LENGTH OF 72.02 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF SR-593 (TROPICANA AVENUE); THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY LINE THE FOLLOWING TWO COURSES AND DISTANCES: SOUTH 89º01’13” WEST A DISTANCE OF 232.78 FEET; THENCE NORTH 86º24’21” WEST A DISTANCE OF 85.27 FEET TO A POINT ON THE RIGHT OR EASTERLY RIGHT-OF-WAY LINE OF IR-15 FREEWAY 1797.84 FEET RIGHT OF AND AT RIGHT ANGLES TO HIGHWAY ENGINEER’S STATION “B1’ 205+31.46 P.O.T.; THENCE ALONG SAID RIGHT-OF-WAY LINE THE FOLLOWING NINE COURSES AND DISTANCES: CONTINUING NORTH 86º24’21” WEST A DISTANCE OF 65.21 FEET; THENCE SOUTH 89º01’13” WEST A DISTANCE OF 178.50 FEET TO A POINT ON A TANGENT CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 35.50 FEET; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43º20’30” AN ARC LENGTH OF 26.85 FEET TO A POINT ON A TANGENT COMPOUND CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 13.50 FEET; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10º19’02” AN ARC LENGTH OF 2.43 FEET; THENCE SOUTH 89º01’13” WEST A DISTANCE OF 54.25 FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 49.50 FEET; THENCE FROM A RADIAL LINE THAT BEARS SOUTH 67º08’56” EAST, SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 66º10’09” AN ARC LENGTH OF 57.17 FEET; THENCE SOUTH

 

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89º01’13” WEST A DISTANCE OF 181.02 FEET; THENCE NORTH 00º58’47” WEST A DISTANCE OF 46.02 FEET TO A POINT ON THE NORTH LINE OF THE AFOREMENTIONED NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SECTION 29; THENCE SOUTH 89º03’00” WEST A DISTANCE OF 175.55 FEET TO THE SOUTHWEST CORNER OF THE SOUTH HALF (S  1 ⁄ 2 ) OF THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20; THENCE NORTH 00º06’17” EAST ALONG THE WEST LINE THEREOF A DISTANCE OF 667.98 FEET TO AN ANGLE POINT IN THE PROPERTY LINE DESCRIBED IN THE DEED FROM W.D. CLOSE, ET AL TO MAJOR A. RIDDLE, ET AL., RECORDED IN BOOK 275, DOCUMENT NUMBER 222926, DECEMBER 11, 1961, OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA; THENCE NORTH 89º30’50” EAST ALONG THE NORTH LINE THEREOF A DISTANCE OF 1106.46 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF THE AFOREMENTIONED LAS VEGAS BOULEVARD SOUTH (U.S. HIGHWAY 91- 93-466); THENCE SOUTH 00º02’00” EAST ALONG SAID WESTERLY RIGHT-OF-WAY LINE A DISTANCE OF 557.86 FEET TO AN ANGLE POINT IN SAID WESTERLY RIGHT-OF-WAY LINE; THENCE SOUTH 00º17’00” EAST ALONG SAID WESTERLY RIGHT-OF-WAY LINE A DISTANCE OF 101.12 FEET TO THE TRUE POINT OF BEGINNING.

TOGETHER WITH THAT PORTION OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 29; THENCE SOUTH 88º59’00” WEST ALONG THE NORTH LINE OF SAID NORTHEAST QUARTER (NE  1 ⁄ 4 ) A DISTANCE OF 776.46 FEET; THENCE SOUTH 1º02’47” EAST (BEING A RADIAL BEARING) A DISTANCE OF 27.06 FEET TO THE NORTH LINE OF TROPICANA AVENUE, ALSO BEING THE TRUE POINT OF BEGINNING 91.32 FEET RIGHT OF (“BRI” 84+43.50 P.O.T.); THENCE NORTHWESTERLY 26.85 FEET ALONG A CURVE CONCAVE NORTHEASTERLY THROUGH A CENTRAL ANGLE OF 43º20’30” HAVING A RADIUS OF 35.50 FEET TO A POINT OF COMPOUND CURVE; THENCE CONTINUING NORTHWESTERLY 2.43 FEET ALONG A CURVE CONCAVE NORTHEASTERLY THROUGH A CENTRAL ANGLE OF 10º19’05” HAVING A RADIUS OF 13.50 FEET; THENCE SOUTH 88º57’13” WEST A DISTANCE OF 54.25 FEET; THENCE SOUTH 82º14’19” EAST A DISTANCE OF 75.11 FEET; THENCE NORTH 88º57’13” EAST A DISTANCE OF 6.00 FEET TO THE POINT OF BEGINNING.

EXCEPTING FROM PARCEL II THOSE PORTIONS DEEDED TO THE STATE OF NEVADA, ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION, BY DEEDS RECORDED JULY 29, 1997 IN BOOK 970729 AS DOCUMENT NUMBERS 00025 AND 00027 AND DESCRIBED AS FOLLOWS:

A PORTION OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT ON THE NORTH LINE OF SAID NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ), SOUTH 88º59’00” WEST A DISTANCE OF 982.96 FEET FROM THE NORTHEAST CORNER OF SAID SECTION 29; THENCE CONTINUING SOUTH 88º59’00” WEST ALONG SAID NORTH LINE AND NORTHERLY LINE OF TROPICANA AVENUE, A DISTANCE OF 100.02 FEET TO A POINT 118.54 FEET RIGHT OF STATION 87+50.02 FEET P.O.T. OF “BRI” LINE; THENCE ALONG THE FORMER NORTHERLY LINE OF TROPICANA AVENUE SOUTH 1º02’59” EAST A DISTANCE OF 45.22 FEET; THENCE CONTINUING ALONG SAID FORMER NORTHERLY LINE NORTH 88º57’13” EAST A DISTANCE OF 181.02 FEET; THENCE CONTINUING ALONG SAID FORMER NORTHERLY LINE 57.17 FEET ALONG A CURVE CONCAVE NORTHWESTERLY, THROUGH A CENTRAL ANGLE OF 66º10’09” HAVING A RADIUS OF 49.50 FEET; THENCE ALONG THE NORTHERLY LINE OF TROPICANA AVENUE NORTH 83º58’25” WEST A DISTANCE OF 127.25 FEET TO THE POINT OF BEGINNING; AND

COMMENCING AT THE NORTHEAST CORNER OF SECTION 29; THENCE SOUTH 88º59’00” WEST ALONG THE NORTH LINE OF SAID NORTHEAST QUARTER (NE  1 ⁄ 4 ) A DISTANCE OF 362.88 FEET; THENCE SOUTH 1º01’00” EAST A DISTANCE OF 38.85 FEET TO THE TRUE POINT OF BEGINNING ALSO BEING ON THE NORTH LINE TROPICANA AVENUE, STATION 80+29.93, 79.32 FEET RIGHT “BRI” LINE; THENCE SOUTH 88º57’13” WEST ALONG SAID NORTH LINE A DISTANCE OF 85.07 FEET; THENCE CONTINUING ALONG SAID NORTH LINE NORTH 86º28’21” WEST A DISTANCE OF 138.86

 

S-33

FEET; THENCE NORTH 87º25’34” EAST A DISTANCE OF 41.71 FEET; THENCE NORTHEASTERLY 1.49 FEET ALONG A CURVE CONCAVE SOUTHEASTERLY THROUGH A CENTRAL ANGLE OF 01º31’37” HAVING A RADIUS OF 56.00 FEET; THENCE NORTH 88º57’13” EAST A DISTANCE OF 105.07 FEET; THENCE SOUTHEASTERLY 9.61 FEET ALONG A CURVE CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 09º50’05” HAVING A RADIUS OF 56.00 FEET; THENCE SOUTH 81º12’43” EAST A DISTANCE OF 66.64 FEET TO THE POINT OF BEGINNING.

ALSO EXCEPTING FROM PARCEL II ANY PORTION DEEDED TO THE STATE OF NEVADA, ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION, BY DEED RECORDED AUGUST 2, 1990 IN BOOK 900802 AS DOCUMENT NO. 00475 OF OFFICIAL RECORDS.

FURTHER EXCEPTING THEREFROM THAT PORTION OF SAID LAND AS DESCRIBED IN DEED RECORDED FEBRUARY 22, 2006 IN BOOK 20060222 AS DOCUMENT NO. 0001360 OF OFFICIAL RECORDS.

TOGETHER WITH THAT PORTION OF SAID LAND AS DESCRIBED IN DEED RECORDED FEBRUARY 22, 2006 IN BOOK 20060222 AS DOCUMENT NO. 0001361 OF OFFICIAL RECORDS.

TOGETHER WITH THAT PORTION OF SAID LAND AS ABANDONED BY THAT CERTAIN RESOLUTION OF ABANDONMENT RECORDED FEBRUARY 22, 2006 IN BOOK 20060222 AS DOCUMENT NO. 01365 OF OFFICIAL RECORDS.

AS DISCLOSED ON THAT CERTAIN RECORD OF SURVEY IN FILE 73 OF SURVEYS, PAGE 82 AND ALSO SHOWN ON THE REVISED RECORD OF SURVEY IN FILE 75, PAGE 15 OF OFFICIAL RECORDS.

AS SURVEYED DESCRIPTION OF PARCELS I AND II IS AS FOLLOWS:

THAT PORTION OF THE NORTH HALF (N 1/2) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M., DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT IN THE WESTERLY BOUNDARY OF U.S. HIGHWAY NO. 91, FROM WHICH THE SOUTHEAST CORNER OF SAID SECTION 20 BEARS SOUTH 10°35’48” EAST, A DISTANCE OF 822.32 FEET, SAID POINT BEING THE SOUTHEAST CORNER OF THAT PARCEL OF LAND CONVEYED TO MICHELE TERLIZZI, ET AL, BY DEED RECORDED JULY 30, 1953 AS DOCUMENT NO. 410028 OF CLARK COUNTY, NEVADA RECORDS; THENCE ALONG SAID WESTERLY BOUNDARY, SOUTH 00°02’00” EAST, A DISTANCE OF 582.78 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 19.08 FEET; THENCE SOUTH 00°21’37” EAST, A DISTANCE OF 176.33 FEET; TO THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 92.79 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 89°55’46” EAST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 39°49’03”, AN ARC LENGTH OF 64.48 FEET TO THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 92.79 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 52°21’43” EAST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 48°18’37”, AN ARC LENGTH OF 78.24 FEET TO THE NORTHERLY RIGHT OF WAY OF TROPICANA AVENUE; THENCE ALONG SAID RIGHT OF WAY, SOUTH 88°52’29” WEST, A DISTANCE OF 117.46 FEET; THENCE NORTH 89°43’13” WEST, A DISTANCE OF 23.67 FEET; THENCE NORTH 84°28’47” WEST, A DISTANCE OF 13.47 FEET; THENCE NORTH 80°46’50” WEST, A DISTANCE OF 25.42 FEET; THENCE NORTH 81°15’36” WEST, A DISTANCE OF 30.18 FEET; THENCE NORTH 86°02’52” WEST, A DISTANCE OF 10.76 FEET; THENCE NORTH 03°57’08” EAST, A DISTANCE OF 3.18 FEET; THENCE SOUTH 89°02’07” WEST, A DISTANCE OF 105.94 FEET; THENCE SOUTH 87°31’50” WEST, A DISTANCE OF 43.20 FEET; THENCE NORTH 86°23’47” WEST, A DISTANCE OF 11.62 FEET; THENCE SOUTH 89°01’55” WEST, A DISTANCE OF 178.50 FEET; THENCE SOUTH 89°17’11” WEST, A DISTANCE OF 5.98 FEET; THENCE NORTH 82°10’59” WEST, A DISTANCE OF 75.12 FEET; THENCE NORTH 83°30’57” WEST, A DISTANCE OF 126.97 FEET; THENCE SOUTH 89°03’52” WEST, A DISTANCE OF 275.95 FEET; THENCE DEPARTING SAID RIGHT OF WAY OF TROPICANA AVENUE, AND ALONG THE BOUNDARY LINE OF LOT 1 OF VICTORIA PARTNERS COMMERCIAL SUBDIVISION, A COMMERCIAL SUBDIVISION RECORDED IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, NORTH 00°08’05” EAST,

 

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A DISTANCE OF 667.93 FEET; THENCE NORTH 89°34’07” EAST, A DISTANCE OF 508.11 FEET; THENCE NORTH 00°02’00” WEST, A DISTANCE OF 156.56 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 600.00 FEET TO THE POINT OF BEGINNING.

(THE ABOVE ‘AS SURVEYED’ DESCRIPTION WAS PREPARED BY GLEN J. DAVIS, PLS 11823, OF LOCHSA SURVEYING, 6345 S. JONES BLVD., SUITE 200, LAS VEGAS, NV 89118)

PARCEL III:

A NON-EXCLUSIVE EASEMENT FOR THE INSTALLATION, MAINTENANCE AND UTILIZATION OF CHILLED WATER, AND HEATED WATER SYSTEMS AS EVIDENCED BY THAT CERTAIN “CENTRAL PLANT EASEMENT AGREEMENT FOR NEW YORK – NEW YORK” RECORDED JANUARY 6, 2016 IN BOOK 20160106 AS DOCUMENT NO. 0000888 OF OFFICIAL RECORDS.

PARCEL IV:

A PERMANENT, NON-EXCLUSIVE EASEMENT FOR VEHICLE AND PEDESTRIAN INGRESS AND EGRESS AS SET FORTH IN INSTRUMENT ENTITLED “NEW YORK - NEW YORK PARKING AND ACCESS AND EASEMENT AGREEMENT BY AND BETWEEN NEW YORK – NEW YORK HOTEL & CASINO, LLC AND ARENA LAND HOLDINGS, LLC” RECORDED MARCH 10, 2016 AS INSTRUMENT NO. 20160310- 0002185 AND RE-RECORDED MARCH 24, 2016 AS INSTRUMENT NO. 20160324-0002872 OF OFFICIAL RECORDS.

 

S-35

The Park – 3778 Las Vegas Blvd., South, Las Vegas, NV

A PORTION OF LOT 1 OF VICTORIA PARTNERS, A COMMERCIAL SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 1, SAID POINT LIES AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE WITH THE NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE;

THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 1, BEING THE NORTHERLY

RIGHT-OF-WAY LINE OF SAID TROPICANA AVENUE, NORTH 89°03’52” EAST, A

DISTANCE OF 638.46 FEET TO THE SOUTHWEST CORNER OF THAT LAND

DESCRIBED IN DOCUMENT RECORDED IN BOOK 950106, AS INSTRUMENT NO.

00827 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA;

THENCE DEPARTING SAID NORTHERLY RIGHT-OF-WAY LINE, AND ALONG THE

WESTERLY LINE THEREOF, NORTH 00°08’05” EAST, A DISTANCE OF 667.93 FEET TO THE NORTHWEST CORNER THEREOF;

THENCE ALONG THE NORTHERLY LINE THEREOF, NORTH 89°34’07” EAST, A

DISTANCE OF 319.07 FEET TO THE POINT OF BEGINNING, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 102.00

FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 80°09’ I7” EAST;

THENCE DEPARTING SAID NORTHERLY LINE AND BOUNDARY LINE,

NORTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE

SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 37°45’18”, AN ARC LENGTH

OF 67.21 FEET;

THENCE NORTH 47°36’0l” WEST, A DISTANCE OF 88.72 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 136.00 FEET;

THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE

EASTERLY THROUGH A CENTRAL ANGLE OF 67°49’44”, AN ARC LENGTH OF 161.00 FEET;

THENCE NORTH 20°13’43” EAST, A DISTANCE OF 47.94 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 32.00 FEET;

THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT

CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 98°53’27”, AN ARC LENGTH OF 55.23 FEET TO A POINT OF CUSP WITH A CURVE HAVING A RADIUS OF 278.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 11°20’16” WEST;

THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT

CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 19°28’ 11”, AN ARC LENGTH OF 94.47 FEET;

THENCE SOUTH 59°11’33” EAST, A DISTANCE OF 107.75 FEET; THENCE SOUTH

65°51’08” EAST, A DISTANCE OF 106.30 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 345.00 FEET;

THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE

NORTHERLY THROUGH A CENTRAL ANGLE OF 45°37’24”, AN ARC LENGTH OF

274.72 FEET; THENCE NORTH 68°31’28” EAST, A DISTANCE OF 41.26 FEET;

 

S-36

THENCE NORTH 64°33’49” EAST, A DISTANCE OF 87.56 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 335.00 FEET;

THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE

SOUTHERLY THROUGH A CENTRAL ANGLE OF 25°30’45”, AN ARC LENGTH OF

149.17 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 108.39 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 32.00 FEET;

THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE

SOUTHERLY THROUGH A CENTRAL ANGLE OF 26°29’04”, AN ARC LENGTH OF

14.79 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD, BEING ALSO THE BOUNDARY LINE OF THE AFORESAID LOT 1:

THENCE ALONG SAID WESTERLY RIGHT-OF- WAY LINE AND EASTERLY LOT

LINE, SOUTH 00°02’00” EAST, A DISTANCE OF 137.20 FEET;

THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY LINE AND CONTINUING

ALONG SAID BOUNDARY, SOUTH 89°58’00” WEST, A DISTANCE OF 600.00 FEET;

THENCE SOUTH 00°02’00” EAST, A DISTANCE OF 156.56 FEET;

THENCE SOUTH 89°34’07” WEST, A DISTANCE OF 189.05 FEET TO THE POINT OF

BEGINNING. ALSO DELINEATED AS “PARK SOUTH” ON THAT CERTAIN RECORD OF SURVEY IN FILE 192 OF SURVEYS, PAGE 83 IN THE OFFICE OF THE COUNTY RECORDER OF CLARK COUNTY, NEVADA.

 

S-37

Beau Rivage - 875 Beach Boulevard, Biloxi, Harrison County, MS

A PARCEL OF LAND SITUATED WITHIN FRACTIONAL SECTION 27 (OR THE ANGELIQUE FASIAR CLAIM), TOWNSHIP 7 SOUTH, RANGE 9 WEST, WITHIN THE CITY OF BILOXI, SECOND JUDICIAL DISTRICT OF HARRISON COUNTY, STATE OF MISSISSIPPI, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

PARCEL 1A (FEE SIMPLE PARCEL)

COMMENCING AT A CONCRETE RIGHT-OF-WAY MONUMENT FOUND AT THE INTERSECTION OF THE NORTH MARGIN OF HIGHWAY 90 AND THE EAST MARGIN OF INTERSTATE 110; THENCE S07°37’00“E 136.12 FEET TO AN “X”-MARK SCRIBED IN CONCRETE AT THE POINT OF BEGINNING; THENCE S85°39’13“E 103.16 FEET TO A “X”-MARK SCRIBED IN CONCRETE; THENCE ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 2,241.83 FEET, AN ARC LENGTH OF 257.48 FEET, AND A CHORD BEARING AND DISTANCE BEING S82°21’48“E 257.34 FEET TO AN “X”-MARK SCRIBED IN CONCRETE; THENCE N00°40’25“W 22.96 FEET TO A MAG NAIL SET; THENCE ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 2,264.33 FEET, AN

ARC LENGTH OF 127.24 FEET, AND A CHORD BEARING AND DISTANCE BEING S77°34’48“E 127.22 FEET TO A MAG NAIL SET; THENCE S75°58’13“E 11.16 FEET TO A MAG NAIL SET; THENCE ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 5,702.08 FEET, AN ARC LENGTH OF 169.18 FEET, AND A CHORD BEARING AND DISTANCE BEING S75°07’13“E 169.18 FEET TO A MAG NAIL SET; THENCE S74°16’12“E 706.73 FEET TO A FOUND “X”-MARK SCRIBED IN CONCRETE; THENCE S01°04’07“E 252.66 FEET TO A FOUND “X”-MARK SCRIBED IN CONCRETE; THENCE S01°55’29“W 92.41 FEET TO A FOUND “X”-MARK SCRIBED IN CONCRETE; THENCE S89°32’22“W 124.45 FEET TO A POINT; THENCE N89°36’56“W 802.41 FEET TO A “X”- MARK SCRIBED IN CONCRETE; THENCE N00°22’23“E 90.01 FEET TO A “X”-MARK SCRIBED IN CONCRETE; THENCE S89°33’28“W 359.71 FEET TO A POINT; THENCE N00°00’51“W 136.79 FEET TO AN “X”-MARK SCRIBED IN CONCRETE; THENCE N77°05’17“W 14.68 FEET TO A POINT; THENCE N60°55’13“W 32.09 FEET TO AN “X”-MARK SCRIBED IN CONCRETE; THENCE N01°27’47“W 381.97 FEET TO THE POINT OF BEGINNING. SAID PARCEL CONTAINS 14.75± ACRES.

LESS AND EXCEPT ANY PORTION LYING WITHIN U.S. HIGHWAY 90.

AND ALSO;

PARCEL 2A (PUBLIC BEACH PARCEL)

A PARCEL OF LAND SITUATED WITHIN FRACTIONAL SECTION 27 (OR THE ANGELIQUE FASIAR CLAIM), TOWNSHIP 7 SOUTH, RANGE 9 WEST, WITHIN THE CITY OF BILOXI, SECOND JUDICIAL DISTRICT OF HARRISON COUNTY, STATE OF MISSISSIPPI, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT A CONCRETE MONUMENT FOUND AT THE INTERSECTION OF THE NORTH MARGIN OF HIGHWAY 90 AND THE EAST MARGIN OF INTERSTATE 110; THENCE S07°37’00“E 136.12 FEET TO AN “X”-MARK SCRIBED IN CONCRETE; THENCE S01°27’47“E 309.39 FEET TO A POINT; THENCE N67°13’54“W 212.17 FEET TO A POINT LYING ON THE EAST MARGIN OF INTERSTATE 110; THENCE ALONG THE EAST MARGIN OF INTERSTATE 110, N34°30’42“E 147.08 FEET TO A POINT; THENCE CONTINUE ALONG THE EAST MARGIN OF INTERSTATE 110, N24°17’59“E 107.81 FEET TO A POINT; THENCE N16°13’57“E 149.18 FEET TO THE POINT OF BEGINNING. SAID PARCEL CONTAINS 0.9± ACRES.

 

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Legal Descriptions Part II - Ground Leases

Beau Rivage---

1. Public Trust Tidelands Lease by the State of Mississippi to Beau Rivage, Inc., as Lessee, dated February 4, 1999, recorded on February 25, 1999 at the Office of the Clerk of the Second Judicial District of the County of Harrison in Book 336, Page 420, as amended by that Amendment to Public Trust Tidelands Lease dated April 19, 2007, recorded on August 1, 2007 at Instrument No. 2007-2925 DJ2, leasing the land more particularly described below:

A PARCEL OF LAND SITUATED IN THE CITY OF BILOXI, SECOND JUDICIAL DISTRICT, HARRISON COUNTY, MISSISSIPPI, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS, TO WIT:

COMMENCE AT A CONCRETE MONUMENT DENOTING THE INTERSECTION OF THE NORTH MARGIN OF U.S. HIGHWAY 90 WITH THE EAST MARGIN OF I-110 LOOP; THENCE RUN SOUTH 07°06’47” EAST, FOR A DISTANCE OF 148.69 FEET TO A POINT; THENCE RUN SOUTH 01°29’12” EAST, FOR A DISTANCE OF 369.79 FEET TO THE POINT OF BEGINNING; THENCE RUN SOUTH 60°54’54” EAST, FOR A DISTANCE OF 32.09 FEET TO A POINT; THENCE RUN SOUTH 77°05’04” EAST, FOR A DISTANCE OF 14.68 FEET TO A POINT; THENCE RUN SOUTH 0°00’00” EAST, FOR A DISTANCE OF 136.77 FEET TO A POINT; THENCE RUN NORTH 89°33’38” EAST, FOR A DISTANCE OF 359.69 FEET TO A POINT; THENCE RUN SOUTH 0°23’14” WEST FOR A DISTANCE OF 90.0 FEET TO A POINT; THENCE RUN SOUTH 89°36’46” EAST, FOR A DISTANCE OF 803.37 FEET TO A POINT; THENCE RUN NORTH 89°32’32” EAST, FOR A DISTANCE OF 36.95 FEET TO A POINT; THENCE SOUTH 0°22’47” WEST, FOR A DISTANCE OF 343.89 FEET TO A POINT; THENCE RUN NORTH 89°36’46” WEST, FOR A DISTANCE OF 732.82 FEET TO A POINT; THENCE RUN NORTH 83°38’45” WEST, FOR A DISTANCE OF 495.89 FEET TO A POINT; THENCE RUN NORTH 01°29’12” WEST, FOR A DISTANCE OF 532.25 FEET TO THE POINT OF BEGINNING, CONTAINING 450,000 SQUARE FEET, OR 10.33 ACRES, APPROXIMATELY.

2. Contingent Public Trust Tidelands Lease of Surface (Fast) Lands by the State of Mississippi to Beau Rivage, Inc. (formerly known as Golden Nugget Biloxi, Inc., as Lessee, dated July 1, 1996, recorded on October 5, 1998 at the Office of the Clerk of the Second Judicial District of the County of Harrison in Book 330, Page 142.

 

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EXHIBIT C

DECONSOLIDATION GROWTH CAPITAL IMPROVEMENTS

[None as of Commencement Date]

 

C-1

EXHIBIT D

GAMING LICENSES

 

   Leased Property    License / Jurisdiction   

Original License

Date

   Regulatory Agency
1    Beau Rivage   

Gaming License as an Operator (Mississippi)

License No. 0975

   June 23, 2015    Mississippi Gaming Commission
2    Excalibur Hotel and Casino   

Nevada Non-restricted Gaming

Location ID: 14727-01

   June 19, 1990    Nevada Gaming Control Board
     

 

Clark County Business Licenses:

 

Gaming - Resort Hotel

1000412.GAM-101

 

General Gaming

1000412.GEN-102

 

Convention Authority Gaming

1000412.CON-101

  

 

July 26, 1990

  

 

Clark County

Commission

3    Gold Strike Casino Resort   

Gaming License as an Operator (Mississippi)

License No. 0981

   June 23, 2015    Mississippi Gaming Commission
4    Luxor Hotel and Casino   

Nevada Non-restricted Gaming

Location ID: 17041-01

   October 15, 1993    Nevada Gaming Control Board
     

 

Clark County Business Licenses:

 

Gaming - Resort Hotel

1001400.GAM-101

 

General Gaming

1001400.GEN-102

 

Convention Authority Gaming

1001400.CON-101

  

 

December 10, 1993

  

 

Clark County

Commission

5    Mandalay Bay Resort and Casino   

Nevada Non-restricted Gaming

Location ID: 00022-03

   March 02, 1999    Nevada Gaming Control Board
     

Clark County Business Licenses:

 

Gaming - Resort Hotel

1003046.GAM-101

 

General Gaming

1003046.GEN-102

   March 23, 1999   

Clark County

Commission

 

D-1

   Leased Property    License / Jurisdiction   

Original License

Date

   Regulatory Agency
     

Convention Authority Gaming

1003046.CON-101

     
6   

MGM Grand Detroit

Hotel and Casino

  

Michigan Commercial Casino License

CA01-1999

   July 28, 1999    Michigan Gaming Control Board
      Revised Development Agreement    August 2,2002    City of Detroit
7    Mirage Casino-Hotel   

Nevada Non-restricted Gaming

Location ID: 11018-01

   November 22, 1989    Nevada Gaming Control Board
     

 

Clark County Business Licenses:

 

Gaming - Resort Hotel

1000195.GAM-101

 

General Gaming

1000195.GEN-102

 

Convention Authority Gaming

1000195.CON-101

  

 

May, 02, 1990

  

 

Clark County Commission

8    Monte Carlo Hotel and Casino   

Nevada Non-restricted Gaming

Location ID: 20682-01

   June 21, 1996    Nevada Gaming Control Board
     

 

Clark County Business Licenses:

 

Gaming-Resort Hotel

1002194.GAM-101

 

General Gaming

1002194.GEN-102

 

Convention Authority Gaming

1002194.CON-101

  

 

August 20, 1996

  

 

Clark County

Commission

9    New York-New York Hotel and Casino   

Nevada Non-restricted Gaming

Location ID: 03176-03

   November 21, 1996    Nevada Gaming Control Board
     

 

Clark County Business Licenses:

 

General Gaming

1002189.GEN-102

 

Gaming – Resort Hotel

1002189.GAM-101

 

Convention Authority Gaming

1002189.CON-101

  

 

March 27, 1997

(CON-101 & GAM-101)

 

June 16, 1997 (GEN-102)

  

 

Clark County

Commission

 

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EXHIBIT E

FORM OF GUARANTY

This GUARANTY OF MASTER LEASE (this “ Guaranty ”), is made and entered into as of the              day of, 2016 by and between MGM RESORTS INTERNATIONAL , a Delaware corporation, (“ Guarantor “), and MGP Lessor LLC, a Delaware limited liability company (“ Landlord ”).

RECITALS

A.      Landlord and MGM Lessee, LLC (“ Tenant ”) have entered into that certain Master Lease dated of even date herewith (as may be amended, restated, supplemented, waived or otherwise modified from time to time, the “ Master Lease ”). All capitalized terms used and not otherwise defined herein shall have the same meanings given such terms in the Master Lease.

B.      Guarantor is an affiliate of Tenant, will derive substantial benefits from the Master Lease and acknowledges and agrees that this Guaranty is given in accordance with the requirements of the Master Lease and that Landlord would not have been willing to enter into the Master Lease unless Guarantor was willing to execute and deliver this Guaranty.

AGREEMENTS

NOW, THEREFORE , in consideration of Landlord entering into the Master Lease with Tenant, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Guarantor agrees as follows:

1.       Guaranty . In consideration of the benefit derived or to be derived by it therefrom, as to the Master Lease, from and after the Commencement Date thereof, Guarantor hereby unconditionally and irrevocably guarantees, as a primary obligor and not merely as a surety, (i) the payment when due of all Rent and all other sums payable by Tenant under the Master Lease, and (ii) the faithful and prompt performance when due of each and every one of the terms, conditions and covenants to be kept and performed by Tenant under the Master Lease, including, without limitation, all indemnification obligations, insurance obligations, and all obligations to operate, rebuild, restore or replace any facilities or improvements now or hereafter located on the Leased Property covered by the Master Lease (collectively, the “ Obligations ”). In the event of the failure of Tenant to pay any such Rent or other sums, or to render any other performance required of Tenant under the Master Lease, when due or within any applicable cure period, Guarantor shall forthwith perform or cause to be performed all provisions of the Master Lease to be performed by Tenant thereunder, and pay all reasonable costs of collection or enforcement and other damages that may result from the non-performance thereof to the full extent provided under the Master Lease. As to the Obligations, Guarantor’s liability under this Guaranty is without limit except as provided in Section 12 and 13 hereof. Guarantor agrees that its guarantee provided herein constitutes a guarantee of payment when due and not of collection.

2.       Survival of Obligations . The obligations of Guarantor under this Guaranty shall survive and continue in full force and effect notwithstanding:

 

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(a)      any amendment, modification, or extension of the Master Lease pursuant to its terms;

(b)      any compromise, release, consent, extension, indulgence or other action or inaction in respect of any terms of the Master Lease;

(c)      any substitution or release, in whole or part, of any security for this Guaranty which Landlord may hold at any time;

(d)      any exercise or non-exercise by Landlord of any right, power or remedy under or in respect of the Master Lease or any security held by Landlord with respect thereto, or any waiver of any such right, power or remedy or any other guarantor;

(e)      any bankruptcy, insolvency, reorganization, arrangement, adjustment, composition, liquidation, or the like of Tenant or any other guarantor;

(f)      any limitation of Tenant’s liability under the Master Lease or any limitation of Tenant’s liability thereunder which may now or hereafter be imposed by any statute, regulation or rule of law, or any illegality, irregularity, invalidity or unenforceability, in whole or in part, of the Master Lease or any term thereof;

(g)      except as otherwise expressly provided in the Master Lease, including, without limitation Section 1.5 and Article XXII, and subject to Section 13 hereof, any sale, lease, or transfer of all or any part of any interest in any Facility or any or all of the assets of Tenant to any other Person other than to Landlord;

(h)      any act or omission by Landlord with respect to any security instrument or any failure to file, record or otherwise perfect the same;

(i)      any extensions of time for performance under the Master Lease;

(j)      the release of Tenant from performance or observation of any of the agreements, covenants, terms or conditions contained in the Master Lease by operation of law or otherwise;

(k)      the fact that Tenant may or may not be personally liable, in whole or in part, under the terms of the Master Lease to pay any money judgment;

(l)      the failure to give Guarantor any notice of acceptance, default or otherwise;

(m)      any other guaranty now or hereafter executed by Guarantor or anyone else in connection with the Master Lease;

(n)      any rights, powers or privileges Landlord may now or hereafter have against any other Person; or

 

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(o)      any other circumstances, whether or not Guarantor had notice or knowledge thereof.

This Guaranty shall terminate and be of no further force and effect, in whole or in part, as and when, and to the extent, expressly so provided under the terms of the Master Lease. In connection with any such termination or other limitation or modification to Guarantor’s Obligations hereunder, Landlord agrees to execute and deliver to Guarantor any releases, terminations or other documents reasonable requested by Guarantor to evidence any such termination, limitation or modification of this Guaranty.

3.       Primary Liability . The liability of Guarantor with respect to the Master Lease shall be primary, direct and immediate, and Landlord may proceed against Guarantor: (a) prior to or in lieu of proceeding against Tenant, its assets, any security deposit, or any other guarantor; and (b) prior to or in lieu of pursuing any other rights or remedies available to Landlord. All rights and remedies afforded to Landlord by reason of this Guaranty or by law are separate, independent and cumulative, and the exercise of any rights or remedies shall not in any way limit, restrict or prejudice the exercise of any other rights or remedies.

In the event of any default under the Master Lease, a separate action or actions may be brought and prosecuted against Guarantor whether or not Tenant is joined therein or a separate action or actions are brought against Tenant. Landlord may maintain successive actions for other defaults. Landlord’s rights hereunder shall not be exhausted by its exercise of any of its rights or remedies or by any such action or by any number of successive actions until and unless all Obligations the payment and performance of which are hereby guaranteed have been paid and fully performed.

4.       Obligations Not Affected . In such manner, upon such terms and at such times as Landlord in its sole discretion deems necessary or expedient, and without notice to Guarantor, Landlord may: (a) amend, alter, compromise, accelerate, extend or change the time or manner for the payment or the performance of any Obligation hereby guaranteed; (b) extend, amend or terminate the Master Lease; or (c) release Tenant by consent to any assignment (or otherwise) as to all or any portion of the Obligations hereby guaranteed, in each case pursuant to the terms of the Master Lease. Any exercise or non-exercise by Landlord of any right hereby given Landlord, dealing by Landlord with Guarantor or any other guarantor, Tenant or any other Person, or change, impairment, release or suspension of any right or remedy of Landlord against any Person including Tenant and any other guarantor will not affect any of the Obligations of Guarantor hereunder or give Guarantor any recourse or offset against Landlord.

5.       Waiver . With respect to the Master Lease, Guarantor hereby waives and relinquishes all rights and remedies accorded by applicable law to sureties and/or guarantors or any other accommodation parties, under any statutory provisions, common law or any other provision of law, custom or practice, and agrees not to assert or take advantage of any such rights or remedies including, but not limited to:

(a)      any right to require Landlord to proceed against Tenant or any other Person or to proceed against or exhaust any security held by Landlord at any time or to pursue any other remedy in Landlord’s power before proceeding against Guarantor

 

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or to require that Landlord cause a marshaling of Tenant’s assets or any assets given as collateral for this Guaranty, or to proceed against Tenant and/or any collateral held by Landlord at any time or in any particular order;

(b)      any defense that may arise by reason of the incapacity or lack of authority of any other Person or Persons;

(c)      notice of the existence, creation or incurring of any new or additional obligation or of any action or non-action on the part of Tenant, Landlord, any creditor of Tenant or Guarantor or on the part of any other Person whomsoever under this or any other instrument in connection with any obligation held by Landlord or in connection with any obligation hereby guaranteed;

(d)      any defense based upon an election of remedies by Landlord which destroys or otherwise impairs the subrogation rights of Guarantor or the right of Guarantor to proceed against Tenant for reimbursement, or both;

(e)      any defense based upon any statute or rule of law which provides that the obligation of a surety must be neither larger in amount nor in other respects more burdensome than that of the principal;

(f)      any duty on the part of Landlord to disclose to Guarantor any facts Landlord may now or hereafter know about Tenant, regardless of whether Landlord has reason to believe that any such facts materially increase the risk beyond that which Guarantor intends to assume or has reason to believe that such facts are unknown to Guarantor or has a reasonable opportunity to communicate such facts to Guarantor, it being understood and agreed that Guarantor is fully responsible for being and keeping informed of the financial condition of Tenant and of all circumstances bearing on the risk of non-payment or non-performance of any Obligations hereby guaranteed;

(g)      any defense arising because of Landlord’s election, in any proceeding instituted under the federal Bankruptcy Code, of the application of Section 1111(b)(2) of the federal Bankruptcy Code;

(h)      any defense based on any borrowing or grant of a security interest under Section 364 of the federal Bankruptcy Code; and

(i)      all rights and remedies accorded by applicable law to guarantors, including without limitation, any extension of time conferred by any law now or hereafter in effect and any requirement or notice of acceptance of this Guaranty or any other notice to which the undersigned may now or hereafter be entitled to the extent such waiver of notice is permitted by applicable law.

6.       Information . Guarantor assumes all responsibility for being and keeping itself informed of the financial condition and assets of Tenant and of all other circumstances bearing upon the risk of nonpayment of the Obligations and the nature, scope and extent of the risks that Guarantor assumes and incurs hereunder and agrees that Landlord will not have any duty to advise Guarantor of information regarding such circumstances or risks.

 

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7.       No Subrogation . Until all Obligations of Tenant under the Master Lease have been satisfied and discharged in full, Guarantor shall have no right of subrogation and waives any right to enforce any remedy which Guarantor now has or may hereafter have against Tenant (including any such remedy of Landlord) and any benefit of, and any right to participate in, any security now or hereafter held by Landlord with respect to the Master Lease.

8.       Agreement to Comply with terms of Master Lease . Guarantor hereby agrees (a) to comply with any terms of the Master Lease applicable to it, (b) that it shall take no action, and that it shall not omit to take any action, which action or omission, as applicable, would cause a breach of the terms of the Master Lease and (c) that it shall not commence an involuntary proceeding or file an involuntary petition in any court of competent jurisdiction seeking (i) relief in respect of Tenant or any of its Significant Subsidiaries, or of a substantial part of the property or assets of Tenant or any of its Significant Subsidiaries, under Title 11 of the United States Code, as now constituted or hereafter amended, or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law or (ii) the appointment of a receiver, trustee, custodian, sequestrator, conservator or similar official for Tenant or any of its Significant Subsidiaries or for a substantial part of the property or assets of Tenant or any of its Significant Subsidiaries. As used herein, the term “Significant Subsidiary” shall mean, with respect to any Person, any Subsidiary of that Person that would be a “significant subsidiary” as defined in Article I, Rule 1 02 of Regulation S-X, promulgated pursuant to the Securities Act as such Regulation is in effect on the date hereof.

9.       Agreement to Pay; Contribution; Subordination . Without limitation of any other right of Landlord at law or in equity, upon the failure of Tenant to pay any Obligation when and as the same shall become due, Guarantor hereby promises to and will forthwith pay, or cause to be paid, to Landlord in cash the amount of such unpaid Obligation. Upon payment by Guarantor of any sums to Landlord as provided above, all rights of Guarantor against Tenant arising as a result thereof by way of subrogation, contribution, reimbursement, indemnity or otherwise shall be subject to the limitations set forth in this Section 9. If for any reason whatsoever Tenant now or hereafter becomes indebted to Guarantor or any Affiliate of Guarantor, such indebtedness and all interest thereon shall at all times be subordinate to Tenant’s obligation to Landlord to pay as and when due in accordance with the terms of the Master Lease the guaranteed Obligations, it being understood that Guarantor and each Affiliate of Guarantor shall be permitted to receive payments from Tenant on account of such obligations except during the continuance of an Event of Default under the Master Lease relating to failure to pay amounts due under the Master Lease. During any time in which an Event of Default relating to failure to pay amounts due under the Master Lease has occurred and is continuing under the Master Lease (and provided that Guarantor has received written notice thereof), Guarantor agrees to make no claim for such indebtedness that does not recite that such claim is expressly subordinate to Landlord’s rights and remedies under the Master Lease.

10.       Application of Payments . With respect to the Master Lease, and with or without notice to Guarantor, Landlord, in Landlord’s sole discretion and at any time and from time to time and in such manner and upon such terms as Landlord deems appropriate, may (a) apply any or all payments or recoveries following the occurrence and during the continuance of an Event of Default from Tenant or from any other guarantor under any other instrument or realized from any security, in such manner and order of priority as Landlord may determine, to

 

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any obligation of Tenant with respect to the Master Lease and whether or not such obligation is guaranteed hereby or is otherwise secured, and (b) refund to Tenant any payment received by Landlord under the Master Lease.

11.       Guaranty Default . Upon the failure of Guarantor to pay the amounts required to be paid hereunder when due following the occurrence and during the continuance of an Event of Default under the Master Lease, Landlord shall have the right to bring such actions at law or in equity, including appropriate injunctive relief, as it deems appropriate to compel compliance, payment or deposit, and among other remedies to recover its reasonable attorneys’ fees in any proceeding, including any appeal therefrom and any post judgment proceedings.

12.       Maximum Liability . Guarantor and, by its acceptance of the guarantees provided herein, Landlord, hereby confirms that it is the intention of all such Persons that the guarantees provided herein and the obligations of Guarantor hereunder not constitute a fraudulent transfer or conveyance for purposes of the United States Bankruptcy Code or any other federal, state or foreign bankruptcy, insolvency, receivership or similar law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent Transfer Act or any similar foreign, federal or state law to the extent applicable to the guarantees provided herein and the obligations of Guarantor hereunder. To effectuate the foregoing intention, Landlord hereby irrevocably agrees that the obligations of Guarantor under this Guaranty shall be limited to the maximum amount as will result in such obligations not constituting a fraudulent transfer or conveyance.

13.       Release . Guarantor shall automatically be released from its obligations (in whole or in part, as applicable) hereunder (other than with respect to amounts then due and payable by Guarantor) upon the consummation of a Tenant Change of Control permitted by the Master Lease, the result of which is that Tenant is neither wholly owned, directly or indirectly, by, nor under common Control with Guarantor; provided that Landlord shall have consented to such transaction to the extent such consent is required by the terms of the Master Lease; and provided further that no release of Guarantor shall be permitted to occur in a Foreclosure COC or Foreclosure Assignment.

14.       Notices . Any notice, request or other communication to be given by any party hereunder shall be in writing and shall be sent by registered or certified mail, postage prepaid and return receipt requested, by hand delivery or express courier service, by facsimile transmission or by an overnight express service to the following address:

To Guarantor :

MGM Resorts International

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

Attention: Corporate Legal

With a copy to

(that shall not constitute notice):

Weil, Gotshal & Manges, LLP

767 Fifth Avenue

 

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New York, NY 10153

Attention: Michael Aiello

    W. Michael Bond

Email: michael.aiello@weil.com

michael.bond@weil.com

To Landlord :

MGP Lessor, LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

Attention: Corporate Legal

And with a copy to

(which shall not constitute notice):

Weil, Gotshal & Manges, LLP

767 Fifth Avenue

New York, NY 10153

Attention: Michael Aiello

    W. Michael Bond

Email: michael.aiello@weil.com

michael.bond@weil.com

or to such other address as either party may hereafter designate. Notice shall be deemed to have been given on the date of delivery if such delivery is made on a Business Day, or if not, on the first Business Day after delivery. If delivery is refused, Notice shall be deemed to have been given on the date delivery was first attempted. Notice sent by facsimile transmission shall be deemed given upon confirmation that such Notice was received at the number specified above or in a Notice to the sender.

15.       Miscellaneous .

(a)      No term, condition or provision of this Guaranty may be waived except by an express written instrument to that effect signed by Landlord. No waiver of any term, condition or provision of this Guaranty will be deemed a waiver of any other term, condition or provision, irrespective of similarity, or constitute a continuing waiver of the same term, condition or provision, unless otherwise expressly provided. No term, condition or provision of this Guaranty may be amended or modified with respect to Guarantor except by an express written instrument to that effect signed by Landlord and Guarantor.

(b)      If any one or more of the terms, conditions or provisions contained in this Guaranty is found in a final award or judgment rendered by any court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining terms, conditions and provisions of this Guaranty shall not in any way be affected or impaired thereby, and this Guaranty shall be interpreted and construed as if the invalid, illegal, or unenforceable term, condition or provision had never been contained in this Guaranty.

 

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(c)      THIS GUARANTY SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK , EXCEPT THAT THE LAWS OF THE STATE WHERE THE LEASED PROPERTY IS LOCATED SHALL GOVERN THIS AGREEMENT TO THE EXTENT NECESSARY (I) TO OBTAIN THE BENEFIT OF THE RIGHTS AND REMEDIES SET FORTH HEREIN WITH RESPECT TO ANY OF THE LEASED PROPERTY AND (II) FOR PROCEDURAL REQUIREMENTS WHICH MUST BE GOVERNED BY THE LAWS OF THE STATE. GUARANTOR CONSENTS TO IN PERSONAM JURISDICTION BEFORE THE STATE AND FEDERAL COURTS OF NEW YORK AND AGREES THAT ALL DISPUTES CONCERNING THIS GUARANTY SHALL BE HEARD IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK. GUARANTOR FURTHER CONSENTS TO IN PERSONAM JURISDICTION BEFORE THE STATE AND FEDERAL COURTS OF EACH STATE WITH RESPECT TO ANY ACTION COMMENCED BY LANDLORD SEEKING TO RETAKE POSSESSION OF ANY OR ALL OF THE LEASED PROPERTY IN WHICH GUARANTOR IS REQUIRED TO BE NAMED AS A NECESSARY PARTY. GUARANTOR AGREES THAT SERVICE OF PROCESS MAY BE EFFECTED UPON IT UNDER ANY METHOD PERMISSIBLE UNDER THE LAWS OF THE STATE OF NEW YORK AND IRREVOCABLY WAIVES ANY OBJECTION TO VENUE IN THE STATE AND FEDERAL COURTS LOCATED IN THE STATE OF NEW YORK OR, TO THE EXTENT APPLICABLE IN ACCORDANCE WITH THE TERMS HEREOF, LOCATED IN THE STATE WHERE THE RELEVANT PORTION OF THE LEASED PROPERTY IS LOCATED.

(d)      GUARANTOR, BY ITS EXECUTION OF THIS GUARANTY, AND LANDLORD, BY ITS EXECUTION AND ACCEPTANCE OF THIS GUARANTY, EACH HEREBY WAIVE TRIAL BY JURY AND THE RIGHT THERETO IN ANY ACTION OR PROCEEDING OF ANY KIND ARISING ON, UNDER, OUT OF, BY REASON OF OR RELATING IN ANY WAY TO THIS GUARANTY OR THE INTERPRETATION, BREACH OR ENFORCEMENT THEREOF.

(e)      In the event of any suit, action, arbitration or other proceeding to interpret this Guaranty, or to determine or enforce any right or obligation created hereby, the prevailing party in the action shall recover such party’s reasonable costs and expenses incurred in connection therewith, including, but not limited to, reasonable attorneys’ fees and costs of appeal, post judgment enforcement proceedings (if any) and bankruptcy proceedings (if any). Any court, arbitrator or panel of arbitrators shall, in entering any judgment or making any award in any such suit, action, arbitration or other proceeding, in addition to any and all other relief awarded to such prevailing party, include in such judgment or award such party’s reasonable costs and expenses as provided in this Section 15(e).

(f)      Guarantor (i) represents that it has been represented and advised by counsel in connection with the execution of this Guaranty; (ii) acknowledges receipt of a copy of the Master Lease; and (iii) further represents that Guarantor has been advised by counsel with respect thereto. This Guaranty shall be construed and interpreted in accordance with the plain meaning of its language, and not for or against Guarantor or Landlord, and as a whole, giving effect to all of the terms, conditions and provisions hereof.

 

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(g)      Except as provided in any other written agreement now or at any time hereafter in force between Landlord and Guarantor, this Guaranty shall constitute the entire agreement of Guarantor with Landlord with respect to the subject matter hereof, and no representation, understanding, promise or condition concerning the subject matter hereof will be binding upon Landlord or Guarantor unless expressed herein.

(h)      All stipulations, obligations, liabilities and undertakings under this Guaranty shall be binding upon Guarantor and its successors and assigns and shall inure to the benefit of Landlord and to the benefit of Landlord’s successors and assigns.

(i)      Whenever the singular shall be used hereunder, it shall be deemed to include the plural (and vice-versa) and reference to one gender shall be construed to include all other genders, including neuter, whenever the context of this Guaranty so requires. Section captions or headings used in the Guaranty are for convenience and reference only, and shall not affect the construction thereof.

(j)      This Guaranty may be executed in any number of counterparts, each of which shall be a valid and binding original, but all of which together shall constitute one and the same instrument.

16.       No Third Party Beneficiaries . The Landlord and its permitted successors and assigns is the beneficiary of this Guarantee. No other Person shall be a third-party beneficiary hereof. Without limiting the foregoing, no other creditor or equity holder of the Landlord, any parent company or its Subsidiaries shall have any rights or be entitled to any benefits hereunder. For the avoidance of doubt, Guarantor hereby consents to the collateral assignment of this Guaranty to any Facility Mortgagee and agrees that any Person who succeeds to Landlord’s interest under the Master Lease in accordance with the terms thereof (or enters into a new lease with Tenant in accordance with Section 31.2 of the Master Lease) shall constitute a permitted successor and/or assignee and intended beneficiary hereof (and shall become, be recognized by Guarantor as, and have all of the rights of “Landlord” hereunder).

[Signature Page to Follow]

 

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EXECUTED as of the date first set forth above.

 

GUARANTOR:
By:
Name:
Title:
LANDLORD :
By:
Name:
Title:

 

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EXHIBIT F-1

FORM OF NONDISTURBANCE AND ATTORNMENT AGREEMENT

(SUBLEASE)

This NON-DISTURBANCE AND ATTORNMENT AGREEMENT (the “ Agreement ”) is dated as of [                              ], and is made by and among MGP LESSOR, LLC , a Delaware limited liability company, having an address at [ ] (together with its successors and assigns, “ Overlandlord “), [and] [SUBTENANT], LLC, a [                          ] [                                      ], having an office at [                                                   ] (“ Subtenant ”) [and [LENDER] a [ ] [ ], having an address at [ ] (together with its successors and assigns, “ Lender” ),] 1 .

WHEREAS, by a Master Lease (as amended, modified or otherwise supplemented, the “ Master Lease ”) dated as of [                      ], 2016, between Overlandlord (or Overlandlord’s predecessor in interest) and [MGM LESSEE, LLC, a Delaware limited liability company] (“ Sublandlord ”), Overlandlord leased to Sublandlord, among other things, certain real property and improvements located at [                      ] (the “ Property ”), a portion of which has been subleased by Sublandlord to Subtenant pursuant to the certain [SUBLEASE] dated as of [                      ] between Sublandlord and Subtenant (“ Sublease ”), as said portion of the Property is more particularly described in the Sublease (such portion of the Property hereinafter referred to as the “ Subleased Premises ”);

[WHEREAS, Lender has made or intends to make (or represents one or more lenders who have made or intend to make) one or more loans or other extensions of credit to Overlandlord, including extensions of credit in the form of letters of credit, secured interest rate hedging agreements and secured cash management agreements (the “ Extensions of Credit ”), which Extensions of Credit shall be evidenced by one or more loan or credit agreements or other agreements or instruments (as the same may be amended, modified, restated, severed, consolidated, renewed, replaced, or supplemented from time to time, collectively the “ Credit Agreements ”) and secured by, among other things, those certain [Mortgage or Deed of Trust, Assignment of Leases and Rents and Security Agreements] (as the same may be amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time, collectively, the “ Mortgage ” and together with the Credit Agreements, the “ Financing Documents ”) encumbering [the Property, including the Subleased Premises];] 2

WHEREAS, Overlandlord[, Lender] and Subtenant desire to evidence their understanding with respect to the Master Lease[, the Mortgage] and the Sublease as hereinafter provided; and

 

 

1 NTD: Include bracketed language relating to Lender, Credit Agreements and Mortgage throughout this Agreement if Lender is signing the NDA as contemplated by Section 22.3(c) of the Master Lease. References to “Lender” may be modified to reflect an agent, trustee or other representative acting for a group of debt holders.

2 NTD: Subject to modification to reflect terms and type of financing secured by the applicable mortgage.

 

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WHEREAS, pursuant to Section 22.3 of the Master Lease, Overlandlord has agreed to deliver this Agreement and has agreed not to disturb Subtenant’s possessory rights in the Subleased Premises under the Sublease on the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth, the parties hereto hereby agree as follows:

1.      Subtenant covenants, stipulates and agrees that the Sublease and all of Subtenant’s right, title and interest in and to the Subleased Premises thereunder (including, but not limited to, any option to purchase, right of first refusal to purchase or right of first offer to purchase the Subleased Premises or any portion thereof) is hereby, and shall at all times continue to be, subordinated and made secondary and inferior in each and every respect to the Mortgage and the lien thereof, to all of the terms, conditions and provisions thereof and to any and all advances made or to be made thereunder, so that at all times the Mortgage shall be and remain a lien on the Property, including the Subleased Premises, prior to and superior to the Sublease for all purposes, subject to the provisions set forth herein. Such subordination is to have the same force and effect as if the Mortgage and such renewals, modifications, consolidations, replacements and extensions had been executed, acknowledged, delivered and recorded prior to the Sublease, any amendments or modifications thereof and any notice thereof.

2.      Overlandlord [(and, if Lender exercises any of its rights under the Mortgage, including entry or foreclosure of the Mortgage or exercise of a power of sale under the Mortgage, Lender or any person who acquires any portion of the Property in a foreclosure or similar proceeding or in a transfer in lieu of any such foreclosure (a “ Foreclosing Party ”))] agrees that if Sublandlord’s interest in the Subleased Premises or any portion thereof or interest therein is sold, conveyed or terminated upon the exercise by Overlandlord [(or such Foreclosing Party)] of any remedy provided for in the Master Lease (or in lieu of such exercise) or otherwise by operation of law [(in each case, other than in connection with the expiration of the term of the Master Lease)] 3 [and notwithstanding any expiration of the Term of the Master Lease] 4 , Overlandlord [(or such Foreclosing Party)], or any person who acquires any portion of the Subleased Premises in such a sale or conveyance, (a) will not terminate or disturb Subtenant’s right to use, occupy and possess the Subleased Premises, nor any of Subtenant’s rights, privileges and options under the terms of the Sublease, so long as Subtenant is not in default beyond any applicable notice and cure period under any term, covenant or condition of the Sublease. In addition, Overlandlord or any person prosecuting such rights and remedies [(including a Foreclosing Party)] agrees that so long as the Sublease has not been terminated on account of Subtenant’s default that has continued beyond applicable notice and cure periods [and the term of the Master Lease has not expired] 5 , Overlandlord or such other person, as the case may be, shall not name or join Subtenant as a defendant in any exercise of Overlandlord’s or

 

 

3 NTD: Include bracketed language unless NDA relates to a Sublease with respect to which Overlandlord has consented to the term exceeding the term of the Master Lease pursuant to Section 22.3(d) of the Master Lease.

4 NTD: Include bracketed language where NDA relates to a Sublease with respect to which Overlandlord has consented to the term exceeding the term of the Master Lease pursuant to Section 22.3(d) of the Master Lease.

5 Same as footnote 3 above.

 

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such person’s rights and remedies arising upon a default under the Master Lease unless applicable law requires Subtenant to be made a party thereto as a condition to proceeding against Sublandlord. In the latter case, Overlandlord or any person prosecuting such rights and remedies may join Subtenant as a defendant in such action only for such purpose and not to terminate the Sublease or otherwise adversely affect Subtenant’s rights under the Sublease or this Agreement in such action [other than upon the expiration of the term of the Master Lease] 6 .

3.      If, at any time Overlandlord (or any person, or such person’s successors or assigns, who acquires the interest of Overlandlord under the Master Lease through foreclosure of a mortgage granted by Overlandlord or otherwise[, including a Foreclosing Party]) shall succeed to the rights of Sublandlord under the Master Lease or otherwise take possession of the Subleased Premises, Subtenant shall attorn to and recognize Overlandlord or such other person (herein sometimes called “ Successor Sublandlord ”) as Subtenant’s sublandlord under the Sublease and shall be bound by the provisions of Article XXXI of the Master Lease, mutatis mutandis , for the benefit of each Facility Mortgagee (as defined in the Master Lease), said attornment and agreement to be effective and self-operative without the execution of any further instruments.

4.      Subtenant shall honor and rely on any written demand or notice from [Lender,] Overlandlord or any Successor Sublandlord instructing Subtenant to pay rent or other sums to [Lender,] Overlandlord or any Successor Sublandlord rather than to Sublandlord (a “ Payment Demand ”), regardless of any other or contrary notice or instruction which Subtenant may receive from Sublandlord before or after Subtenant’s receipt of such Payment Demand[; provided that in the event of any conflict between a Payment Demand by Lender and a Payment Demand by Overlandlord or any successor Sublandlord, Subtenant shall honor and rely on such Payment Demand received from Lender in which case Subtenant shall be fully protected from any claim by Overlandlord arising as a result of Subtenant’s reliance on such Payment Demand by Lender].

5.      If Sublandlord’s interest in the Subleased Premises or any portion thereof or interest therein is sold, conveyed or terminated upon the exercise by Overlandlord [(or a Foreclosing Party)] of any remedy provided for in the Master Lease (or in lieu of such exercise) or otherwise by operation of law [(in each case, other than in connection with the expiration of the term of the Master Lease)] 7 , the Sublease shall continue as a direct sublease between Subtenant and Overlandlord (or any Successor Sublandlord [(including a Foreclosing Party, if applicable)]); provided, that Overlandlord or any Successor Sublandlord [(including a Foreclosing Party, if applicable)] shall not be:

(a)      liable for any act or omission of Sublandlord under the Sublease occurring prior to such sale, conveyance or termination;

(b)      obligated to cure any defaults of Sublandlord which occurred, or to make any payment to Subtenant which was required to be paid by Sublandlord, prior to

 

 

6 Same as footnote 3 above.

7 Same as footnote 3 above.

 

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such sale, conveyance or termination (excluding non-monetary defaults of Sublandlord of a continuing nature that are susceptible of cure);

(c)      obligated to perform any construction obligations of Sublandlord under the Sublease or liable for any defects (latent, patent or otherwise) in the design, workmanship, materials, construction or otherwise with respect to improvements and buildings constructed on the Property (excluding any continuing construction, maintenance or repair obligations of Sublandlord expressly provided for in the Sublease);

(d)      subject to any offset, abatement or reduction of rent because of any default of Sublandlord under the Sublease occurring prior to such sale, conveyance or termination;

(e)      bound by any previous material modification or amendment to the Sublease or any previous prepayment of more than one month’s rent, unless such material modification, amendment or prepayment shall have been approved in writing by Overlandlord (to the extent such approval was required at the time of such amendment or modification or prepayment under the terms of the Master Lease) [and by Lender (to the extent such approval was required at the time of such amendment or modification or prepayment under the terms of the Financing Documents)] or, in the case of such prepayment, such prepayment of rent has actually been delivered to Overlandlord or any Successor Sublandlord [(or in the case of a Foreclosing Party, to such Foreclosing Party or any person becoming a Successor Sublandlord after the applicable foreclosure or transfer in lieu)]; or

(e)      liable for any amount or collateral deposited or delivered to Sublandlord pursuant to the Sublease unless such amount or collateral has actually been delivered to Overlandlord or any Successor Sublandlord [(or in the case of a Foreclosing Party, to such Foreclosing Party or any person becoming a Successor Sublandlord after the applicable foreclosure or transfer in lieu)].

6.      Subtenant hereby represents, warrants, covenants and agrees to and with Overlandlord:

(a)      to deliver to [Lender and] Overlandlord or any Successor Sublandlord, by certified mail, return receipt requested, a duplicate of each notice of default delivered by Subtenant to Sublandlord at the same time as such notice is given to Sublandlord and no such notice of default shall be deemed given by Subtenant under the Sublease unless and until a copy of such notice shall have been so delivered to [Lender and] Overlandlord or any Successor Sublandlord. [Lender,] Overlandlord or any Successor Sublandlord or its designee shall have the right (but shall not be obligated) to cure such default. Subtenant shall accept performance by [Lender,] Overlandlord or any Successor Sublandlord or its designee of any term, covenant, condition or agreement to be performed by Sublandlord or its designee under the Sublease with the same force and effect as though performed by Sublandlord. Subtenant further agrees to afford [Lender,] Overlandlord or any Successor Sublandlord or its designee a period of thirty (30) days beyond any period afforded to Sublandlord for the curing of such default during which

 

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period [Lender,] Overlandlord or such Successor Sublandlord or its designee may elect (but shall not be obligated) to seek to cure such default, or, if such default cannot be cured within that time, then such additional time as may be necessary to cure such default (including, but not limited to, commencement of eviction proceedings) during which period [Lender,] Overlandlord or such Successor Sublandlord or its designee may elect (but shall not be obligated) to seek to cure such default, prior to taking any action to terminate the Sublease to the extent permitted by the terms of the Sublease. If the Sublease shall terminate for any reason, upon [Lender’s,] Overlandlord’s or any Successor Sublandlord’s written request given within thirty (30) days after such termination, Subtenant, within fifteen (15) days after such request, shall execute and deliver to [Lender,] Overlandlord or such Successor Sublandlord (or its designee to the extent constituting a permitted successor landlord under the Sublease) a new sublease of the Subleased Premises for the remainder of the term of the Sublease and upon all of the same terms, covenants and conditions of the Sublease;

(b)      that Subtenant is the sole owner of the leasehold estate created by the Sublease; and

(c)      to promptly upon the written request of [Lender,] Overlandlord or any Successor Sublandlord certify in writing to [Lender,] Overlandlord or such Successor Sublandlord, in connection with any proposed assignment of the [Mortgage or] Master Lease, whether or not any default on the part of Sublandlord then exists under the Sublease and to deliver to [Lender,] Overlandlord or any Successor Sublandlord any tenant estoppel certificates required under the Sublease.

7.      Subtenant acknowledges that, except as otherwise provided herein, Overlandlord shall have no duty, liability or obligation under the Sublease or any extension or renewal thereof, unless Overlandlord shall or has specifically undertake such liability in writing or Overlandlord becomes and then only with respect to periods in which Overlandlord becomes and remains a Successor Sublandlord. [Subtenant acknowledges that the interest of Overlandlord under the Master Lease is assigned to Lender solely as security for the Credit Agreements, 8 and Lender shall have no duty, liability or obligation under the Sublease or any extension or renewal thereof, unless Lender shall specifically undertake such liability in writing or Lender becomes and then only with respect to periods in which Lender becomes and remains the fee owner of the Property and a Successor Sublandlord].

8.      This Agreement shall be governed by and construed in accordance with the laws of the state in which the Property is located.

9.      This Agreement and each and every covenant, agreement and other provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns (including, without limitation, any successor fee owner of the Subleased Premises [and any successor holder of the Financing Documents]) and may be amended, supplemented, waived or modified only by an instrument in writing executed by the

 

 

8 Subject to modification to reflect terms of debt.

 

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party against which enforcement of the termination, amendment, supplement, waiver or modification is sought. Each Facility Mortgagee (as defined in the Master Lease) is an intended third party beneficiary of this Agreement entitled to enforce the same as if a party to this Agreement.

10.      All notices to be given under this Agreement shall be in writing and shall be deemed served upon receipt by the addressee if served personally or, if mailed, upon the first to occur of receipt or the refusal of delivery as shown on a return receipt, after deposit in the United States Postal Service certified mail, postage prepaid, addressed to the address of Overlandlord[, Lender] or Subtenant appearing below. Such addresses may be changed by notice given in the same manner. If any party consists of multiple individuals or entities, then notice to any one of same shall be deemed notice to such party.

 

Subtenant’s Address:      [         ]
     Attn:
With a copy to:      [         ]
[Lender’s Address:     
With a copy to:      [         ]]
Overlandlord’s Address:      [              ], L.P.
With a copy to:      [         ]

11.      If this Agreement conflicts with the Sublease, then this Agreement shall govern as between the parties and any Successor Sublandlord, including upon any attornment pursuant to this Agreement. This Agreement supersedes, and constitutes full compliance with, any provisions in the Sublease that provide for subordination of the Sublease to the Master Lease or for delivery of nondisturbance agreements to Subtenant.

12.      If Sublandlord’s interest in the Subleased Premises or any portion thereof or interest therein is sold, conveyed or terminated upon the exercise by Overlandlord [or a Foreclosing Party] of any remedy provided for in the Master Lease (or in lieu of such exercise) or otherwise by operation of law, Subtenant shall look only to the estate and interest of Overlandlord [or such Foreclosing Party, as applicable, if any,] in the Subleased Premises for the satisfaction of Subtenant’s remedies for the collection of a judgment (or other judicial process)

 

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requiring the payment of money in the event of any default by Overlandlord [or such Foreclosing Party] as a Successor Sublandlord under the Sublease or under this Agreement, and no other property or assets of Overlandlord [or such Foreclosing Party] shall be subject to levy, execution or other enforcement procedure for the satisfaction of Subenant’s remedies under or with respect to the Sublease, the relationship of the landlord and tenant under the Sublease or Subtenant’s use or occupancy of the Subleased Premises or any claim arising under this Agreement.

13.      If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to be enforceable, or if such modification is not practicable, such provision shall be deemed deleted from this Agreement, and the other provisions of this Agreement shall remain in full force and effect.

14.      The rights granted pursuant to this Agreement and any exercise of such rights are subject to compliance with all applicable Legal Requirements (as defined in the Master Lease), including, without limitation, compliance with all Gaming Regulations and the approval of any Gaming Authority, as applicable.

15.      This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

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EXHIBIT F-2

FORM OF SUBORDINATION, NONDISTURBANCE

AND ATTORNMENT AGREEMENT

This SUBORDINATION, NON-DISTURBANCE, AND ATTORNMENT AGREEMENT (the “ Agreement ”) is dated as of [                      ], and is made by and among [LENDER], a [ ] [ ], having an address at [ ] (together with its successors and assigns, “ Lender” ), 9 [                      ], L.P., a Delaware limited partnership, having an office at [                                                   ] (“ Landlord ”), and [                      ], LLC, a Delaware limited liability company, having an office at [                                               ] (“ Tenant ”).

WHEREAS, by a Master Lease (as amended, modified or supplemented, the “ Master Lease ”) dated as of [                ], 2016, between Landlord (or Landlord’s predecessor in interest) and Tenant, Landlord leased to Tenant various parcels of real property together with improvements located thereon, as said property is more particularly described in the Master Lease (such property hereinafter referred to as the “ Leased Property ”);

WHEREAS, Lender has made or intends to make (or is the agent or trustee for one or more lenders who have made or intend to make) one or more loans or other extensions of credit to Landlord, including extensions of credit in the form of letters of credit, secured interest rate hedging agreements and secured cash management agreements (the “ Extensions of Credit ”), which Extensions of Credit shall be evidenced by one or more loan or credit agreements or other agreements or instruments (as the same may be amended, modified, restated, severed, consolidated, renewed, replaced, or supplemented from time to time, collectively the “ Credit Agreements ”) and secured by, among other things, those certain [Mortgage or Deed of Trust, Assignment of Leases and Rents and Security Agreements] (as the same may be amended, restated, replaced, severed, split, supplemented or otherwise modified from time to time, collectively, the “ Mortgage ” and together with the Credit Agreements, the “ Financing Documents ”) encumbering [the Leased Property][the real property located in [                      ] more particularly described on Exhibit A annexed hereto and made a part hereof] (the “ Property ”); 10

WHEREAS, Tenant acknowledges that Lender will rely on this Agreement in making the Extensions of Credit to Landlord;

WHEREAS, Lender and Tenant desire to evidence their understanding with respect to the Mortgage and the Master Lease as hereinafter provided; and

WHEREAS, pursuant to Section 31.1 of the Master Lease, Tenant has agreed, subject to Lender’s simultaneous delivery of this Agreement, to deliver this Agreement and will subordinate the Master Lease to the Mortgage and to the lien thereof and, in consideration of

 

 

9 References to “Lender” may be modified to reflect an agent, trustee or other representative acting for a group of debt holders.

10 Subject to modification to reflect terms and type of financing secured by the applicable mortgage.

 

F2-1

Tenant’s delivery of this Agreement, Lender has agreed not to disturb Tenant’s possessory rights in the Leased Property under the Master Lease on the terms and conditions hereinafter set forth.

NOW, THEREFORE, in consideration of the mutual agreements hereinafter set forth, the parties hereto hereby agree as follows:

1.        Tenant covenants, stipulates and agrees that the Master Lease and all of Tenant’s right, title and interest in and to the Property thereunder (including, but not limited to, any option to purchase, right of first refusal to purchase or right of first offer to purchase the Property or any portion thereof) is hereby, and shall at all times continue to be, subordinated and made secondary and inferior in each and every respect to the Mortgage and the lien thereof, to all of the terms, conditions and provisions thereof and to any and all advances made or to be made thereunder, so that at all times the Mortgage shall be and remain a lien on the Property prior to and superior to the Master Lease for all purposes, subject to the provisions set forth herein. Such subordination is to have the same force and effect as if the Mortgage and such renewals, modifications, consolidations, replacements and extensions had been executed, acknowledged, delivered and recorded prior to the Master Lease, any amendments or modifications thereof and any notice thereof.

2.         Lender agrees that if Lender exercises any of its rights under the Mortgage, including entry or foreclosure of the Mortgage or exercise of a power of sale under the Mortgage, Lender or any person who acquires any portion of the Property in a foreclosure or similar proceeding or in a transfer in lieu of any such foreclosure, (a) will not terminate or disturb Tenant’s right to use, occupy and possess the Leased Property, nor any of Tenant’s rights, privileges and options under the terms of the Master Lease, so long as Tenant is not in default beyond any applicable notice and cure periods under any term, covenant or condition of the Master Lease and (b) will be bound by the provisions of Article XVII of the Master Lease for the benefit of each Permitted Leasehold Mortgagee (as defined in the Master Lease). In addition, Lender or any person prosecuting such rights and remedies agrees that so long as the Master Lease has not been terminated on account of Tenant’s default that has continued beyond applicable notice and cure periods, Lender or such other person, as the case may be, shall not name or join Tenant as a defendant in any exercise of Lender’s or such person’s rights and remedies arising upon a default under the Mortgage unless applicable law requires Tenant to be made a party thereto as a condition to proceeding against Landlord. In the latter case, Lender or any person prosecuting such rights and remedies may join Tenant as a defendant in such action only for such purpose and not to terminate the Master Lease or otherwise adversely affect Tenant’s rights under the Master Lease or this Agreement in such action.

3.        If, at any time Lender (or any person, or such person’s successors or assigns, who acquires the interest of Landlord under the Master Lease through foreclosure of the Mortgage or otherwise) shall succeed to the rights of Landlord under the Master Lease as a result of a default or event of default under the Mortgage, Tenant shall attorn to and recognize such person so succeeding to the rights of Landlord under the Master Lease (herein sometimes called “ Successor Landlord ”) as Tenant’s landlord under the Master Lease, said attornment to be effective and self-operative without the execution of any further instruments.

 

F2-2

4.        Landlord authorizes and directs Tenant to honor any written demand or notice from Lender instructing Tenant to pay rent or other sums to Lender rather than Landlord (a “ Payment Demand ”), regardless of any other or contrary notice or instruction which Tenant may receive from Landlord before or after Tenant’s receipt of such Payment Demand. Tenant may rely upon any notice, instruction, Payment Demand, certificate, consent or other document from, and signed by, Lender and shall have no duty to Landlord to investigate the same or the circumstances under which the same was given. Any payment made by Tenant to Lender or in response to a Payment Demand shall be deemed proper payment by Tenant of such sum pursuant to the Master Lease.

5.        If Landlord’s interest in the Property or any portion thereof or interest therein is sold, conveyed or terminated upon the exercise by Lender of any remedy provided for in the Financing Documents (or in lieu of such exercise), or otherwise by operation of law, the Master Lease shall continue as a direct lease between Tenant and Lender or any Successor Landlord; provided, that Lender or any Successor Landlord shall not be:

  (a)         liable for any act or omission of Landlord under the Master Lease occurring prior to such sale, conveyance or termination;

  (b)        obligated to cure any defaults of Landlord which occurred, or to make any payment to Tenant which was required to be paid by Landlord, prior to such sale, conveyance or termination (excluding non-monetary defaults of Landlord of a continuing nature that are susceptible of cure);

  (c)        obligated to perform any construction obligations of Landlord under the Master Lease or liable for any defects (latent, patent or otherwise) in the design, workmanship, materials, construction or otherwise with respect to improvements and buildings constructed on the Property (excluding any continuing construction, maintenance or repair obligations of Landlord expressly provided for in the Master Lease);

  (d)        subject to any offset, abatement or reduction of rent because of any default of Landlord under the Master Lease occurring prior to such sale, conveyance or termination;

  (e)        bound by any previous material modification or amendment to the Master Lease or any previous prepayment of more than one month’s rent, unless such material modification, amendment or prepayment shall have been approved in writing by Lender (to the extent such approval was required at the time of such amendment or modification or prepayment under the terms of the applicable Financing Documents) or, in the case of such prepayment, such prepayment of rent has actually been delivered to Lender or any Successor Landlord or in either case, such modification, amendment or prepayment occurred before Landlord provided Tenant with notice of the Financing Documents and the identity and address of Lender; or

 

F2-3

  (f)        liable for any security deposit or other collateral deposited or delivered to Landlord pursuant to the Master Lease unless such security deposit or other collateral has actually been delivered to Lender or Successor Landlord.

Notwithstanding the foregoing, Tenant reserves its right to any and all claims or causes of action (i) against Landlord for prior losses or damages and (ii) against the Successor Landlord for all losses or damages arising from and after the date that such Successor Landlord takes title to the Property. For the avoidance of doubt and notwithstanding anything contained herein to the contrary, Lender or any Successor Landlord, upon any such sale, conveyance or termination, shall remain fully obligated to pay the Deconsolidation Growth Capital Improvement Purchase Price (as defined in the Master Lease) pursuant to Section 10.3 of the Master Lease, to the extent the same is payable by Landlord under the Master Lease.

6.        Tenant hereby represents, warrants, covenants and agrees to and with Lender:

  (a)        to deliver to Lender, by certified mail, return receipt requested, a duplicate of each notice of default delivered by Tenant to Landlord at the same time as such notice is given to Landlord and no such notice of default shall be deemed given by Tenant under the Master Lease unless and until a copy of such notice shall have been so delivered to Lender. Lender shall have the right (but shall not be obligated) to cure such default. Tenant shall accept performance by Lender or its designee of any term, covenant, condition or agreement to be performed by Landlord under the Master Lease with the same force and effect as though performed by Landlord. Tenant further agrees to afford Lender or its designee a period of thirty (30) days beyond any period afforded to Landlord or its designee for the curing of such default during which period Lender or its designee may elect (but shall not be obligated) to seek to cure such default, or, if such default cannot be cured within that time, then such additional time as may be necessary to cure such default (including, but not limited to, commencement of foreclosure proceedings) during which period Lender or its designee may elect (but shall not be obligated) to seek to cure such default, prior to taking any action to terminate the Master Lease to the extent permitted by the terms of the Master Lease. If the Master Lease shall terminate for any reason, upon Lender’s written request given within thirty (30) days after such termination, Tenant, within fifteen (15) days after such request, shall execute and deliver to Lender (or its designee to the extent constituting a permitted successor landlord under the Master Lease) a new lease of the Leased Property for the remainder of the term of the Master Lease and upon all of the same terms, covenants and conditions of the Master Lease;

  (b)        that Tenant is the sole owner of the leasehold estate created by the Master Lease; and

  (c)        to promptly upon the written request of Lender certify in writing to Lender, in connection with any proposed assignment of the Mortgage, whether or not any default on the part of Landlord then exists under the Master Lease and to deliver to Lender any tenant estoppel certificates required under the Master Lease.

 

F2-4

7.        Tenant acknowledges that the interest of Landlord under the Master Lease is assigned to Lender solely as security for the Credit Agreements, 11 and Lender shall have no duty, liability or obligation under the Master Lease or any extension or renewal thereof, unless Lender shall specifically undertake such liability in writing or Lender becomes and then only with respect to periods in which Lender becomes, the fee owner of the Property.

8.        This Agreement shall be governed by and construed in accordance with the laws of the state in which the Property is located.

9.        This Agreement and each and every covenant, agreement and other provisions hereof shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns (including, without limitation, any successor holder of the Financing Documents) and may be amended, supplemented, waived or modified only by an instrument in writing executed by the party against which enforcement of the termination, amendment, supplement, waiver or modification is sought. Each Permitted Leasehold Mortgagee (as defined in the Master Lease) (for so long as such Permitted Leasehold Mortgagee holds a Permitted Leasehold Mortgage (as defined in the Master Lease)) is an intended third party beneficiary of Section 2(b) entitled to enforce the same as if a party to this Agreement. Upon the request of the Lender this Agreement shall be recorded in the property records in the county in which the Property is located.

10.        All notices to be given under this Agreement shall be in writing and shall be deemed served upon receipt by the addressee if served personally or, if mailed, upon the first to occur of receipt or the refusal of delivery as shown on a return receipt, after deposit in the United States Postal Service certified mail, postage prepaid, addressed to the address of Landlord, Tenant or Lender appearing below. Such addresses may be changed by notice given in the same manner. If any party consists of multiple individuals or entities, then notice to any one of same shall be deemed notice to such party.

 

  Lender’s Address:    [       ]
     Attn:
  With a copy to:    [       ]
  Tenant’s Address:   
  With a copy to:    [       ]
  Landlord’s Address:    [                      ], L.P.

 

 

11 Subject to modification to reflect terms of debt.

 

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  With a copy to:    [ ]

11.         If this Agreement conflicts with the Master Lease, then this Agreement shall govern as between the parties and any Successor Landlord, including upon any attornment pursuant to this Agreement. This Agreement supersedes, and constitutes full compliance with, any provisions in the Master Lease that provide for subordination of the Master Lease to, or for delivery of nondisturbance agreements by the holder of, the Mortgage.

12.         In the event Lender shall acquire Landlord’s interest in the Leased Property, Tenant shall look only to the estate and interest, if any, of Lender in the Leased Property for the satisfaction of Tenant’s remedies for the collection of a judgment (or other judicial process) requiring the payment of money in the event of any default by Lender as a Successor Landlord under the Master Lease or under this Agreement, and no other property or assets of Lender shall be subject to levy, execution or other enforcement procedure for the satisfaction of Tenant’s remedies under or with respect to the Master Lease, the relationship of the landlord and tenant under the Master Lease or Tenant’s use or occupancy of the Leased Property or any claim arising under this Agreement.

13.         If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be deemed modified to the extent necessary to be enforceable, or if such modification is not practicable, such provision shall be deemed deleted from this Agreement, and the other provisions of this Agreement shall remain in full force and effect.

14.         The rights granted pursuant to this Agreement and any exercise of such rights are subject to compliance with all applicable Legal Requirements, including, without limitation, compliance with all Gaming Regulations and the approval of any Gaming Authority, as applicable.

15.         This Agreement may be executed in any number of counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

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F2-6

MEMORANDUM OF MASTER LEASE

MEMORANDUM OF MASTER LEASE dated [                      ], 2016 is made by and between MGP Lessor, LLC, a Delaware limited liability company (“ Landlord ”) and MGM Lessee, LLC, a Delaware limited liability company (“ Tenant ”).

Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in that certain Master Lease, dated as of the date hereof, by and between Landlord and Tenant (the “ Master Lease ”).

 

NAME AND ADDRESS

OF LANDLORD:

  

MGP Lessor, LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

Attention: Corporate Legal

NAME AND ADDRESS OF TENANT:   

MGM Lessee, LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

Attention: Corporate Legal

DATE OF LEASE:    [                      ], 2016
DESCRIPTION OF LEASED PROPERTY:   

The Leased Property consists of the real properties described in Part I of Exhibit A attached hereto (collectively, the “ Land ”) [together with the Leasehold Estates described in Part II of Exhibit A attached hereto] , together with the Leased Improvements, all easements, rights and appurtenances relating to the Land and the Leased Improvements, the Fixtures, and all other properties or rights, real, personal or otherwise, conveyed to Landlord or Landlord’s Subsidiaries pursuant to the Master Contribution Agreement.

COMMENCEMENT DATE:    [                      ], 2016
EXPIRATION DATE:    [                      ], 2026, subject to renewal as set forth in Section 1.4 of the Master Lease.

This instrument is intended to be only a Memorandum of Master Lease, and reference to the Master Lease is hereby made for all of the terms, conditions and covenants of the parties. This instrument shall not be construed to modify, change, vary or interpret said Master Lease or any of the terms, covenants or conditions thereof. In all instances, reference to the Master Lease should be made for a full description of the rights and obligations of the parties. The recordation of this Memorandum is in lieu of, and with like effect as, the recordation of the Lease.

[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]

 

G-1

IN WITNESS WHEREOF , this Memorandum of Master Lease has been duly executed by Landlord and Tenant as of the date first written above.

 

LANDLORD :

 

MGP Lessor, LLC
By:    
Name:  
Title:  

 

  State of                       
 

 

County of                       

This instrument was acknowledged before me on          , 2016 by              as              of              .

[ NEVADA NOTARY BLOCK – TO BE REVISED IF NOTARIZED OUTSIDE OF NEVADA]

 

[ADDITIONAL SIGNATURE PAGE FOLLOWS]

 

G-2

TENANT:

MGM Lessee, LLC

By:                                                      

Name:

Title:

 

 

  State of                   
 

 

County of                   

 

This instrument was acknowledged before me on          , 2016 by              as              of              .

[ NEVADA NOTARY BLOCK – TO BE REVISED IF NOTARIZED OUTSIDE OF NEVADA]

 

G-3

SCHEDULE 1

EXCLUDED ASSETS

Any and all artwork, paintings, sculptures or other artistic installments or displays that would otherwise constitute a portion of the Leased Property, whether permanently or temporarily located at or on, or affixed to, any portion of the Leased Property as of the date of this Master Lease, whether owed by Tenant or any Affiliate of Tenant or any third-party, together with any and all replacements of or additional artwork, paintings, sculptures or other artistic works at any time located on or attached to the Leased Property, even if same would otherwise constitute Leased Property pursuant to this Master Lease.

 

Schedule 1

Exhibit 10.2

CORPORATE SERVICES AGREEMENT

THIS CORPORATE SERVICES AGREEMENT (this “ Agreement ”) is made and entered into as of April 25, 2016 (the “ Effective Date ”), by and among MGM Resorts International (“ Service Provider ”), MGM Growth Properties LLC (“ MGP ”) and MGM Growth Properties Operating Partnership LP (the “ OP ”; together with MGP, the “ Recipients ”; and, each individually, a “ Recipient ”). Service Provider and Recipients are referred to herein collectively as the “ Parties ” and each individually as a “ Party .”

RECITALS

WHEREAS , Service Provider, MGP and the OP have entered into that certain Master Contribution Agreement, dated as of the date hereof (the “ Contribution Agreement ”), in order to carry out, effect and consummate the Formation Transaction (as defined in the Contribution Agreement);

WHEREAS , Service Provider has employees and/or Subcontractors (as defined below) who have experience and expertise in providing the Services (as defined below) and the capabilities and experience to provide the Services to each Recipient; and

WHEREAS , in connection with the Formation Transaction and with a view to, among other things, more efficiently utilize the Recipients’ financial, administrative and operational resources, each Recipient desires the financial, administrative and operational support of Service Provider’s employees and/or Subcontractors, and Service Provider is willing to provide such service support, in the provision of the Services under the terms and conditions provided by this Agreement.

NOW, THEREFORE , in consideration of the mutual covenants, promises and obligations set forth herein, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, the Parties agree as follows:

 

1. APPOINTMENT OF SERVICE PROVIDER; SCOPE OF WORK

 

1.1 Appointment of Service Provider; Scope . During the Term (as defined below) and subject to the terms and conditions of this Agreement, each Recipient hereby engages Service Provider and grants to Service Provider the power and authority necessary to provide, and Service Provider accepts this engagement and agrees to provide, or cause one or more of its employees, its affiliate’s employees or Subcontractors to provide, to such Recipient the services described in that certain Scope of Services (the “ Scope of Services ”), executed concurrently with this Agreement (the “ Services ”), which Scope of Services may be reviewed and amended by Service Provider from time to time without the consent of any Recipient as necessary to reflect the list of Recipients then receiving the Services and the Services then being provided to such Recipients. Service Provider shall conduct and/or coordinate and oversee, as applicable, all Services from time to time in accordance with the terms of this Agreement and the Scope of Services.

 

1.2 Additional Services . The Parties agree that if a Recipient requires any additional services from Service Provider after the Effective Date that could not reasonably be deemed to be contained in the Services described in the Scope of Services (any such service, an “ Additional Service ”), the provision of which is within the capabilities of Service Provider or the Subcontractors, Service Provider and such Recipient shall work together in good faith to develop a service plan for Service Provider to provide such Additional Services to such Recipient on terms and conditions to be mutually agreed upon by Service Provider and such Recipient. Any such agreement or the provision of any such Additional Service shall be deemed an amendment to, and be subject to all of the terms and conditions of this Agreement as if such Additional Service was a Service included in the Scope of Services as of the Effective Date.

1.3 Service Standard . Service Provider shall perform the Services in accordance with any standards, practices, policies, procedures and guidelines Service Provider has established for the provision of the Services; provided , that Service Provider shall be relieved of its obligations under this Agreement and the Scope of Services to provide or make available the Services to the extent (i) such Recipient’s operations or systems, or acts or omissions of such Recipient and/or its employees, adversely impact Service Provider’s ability to provide such Services (but only for the duration and to the extent of such adverse impact) or (ii) such Services are prohibited by applicable law (but only for the duration and to the extent of such prohibition). Service Provider agrees, and shall use commercially reasonable efforts to ensure that any of the Subcontractors providing any Services agrees, that all Services shall be performed in compliance with applicable laws. All Services dependent on rights or services obtained under Third Party Contracts (as defined below) shall be rendered in a manner consistent with (and shall be subject to any limitations imposed in) the applicable Third Party Contracts.

 

1.4 Location . The Services are to be performed by, or on behalf of, Service Provider from its principal office or, in Service Provider’s sole discretion, any other location as long as Service Provider is in compliance with Section 1.3 (Service Standard).

 

1.5 Access to Premises . In order to enable the provision of the Services by Service Provider, each Recipient agrees that it shall provide to Service Provider and the Subcontractors, at no cost to Service Provider, access to the facilities, assets and books and records of such Recipient in all cases to the extent necessary for Service Provider to fulfill its obligations under this Agreement.

 

1.6 No Agency Relationship or Partnership . Notwithstanding the fact that, in relation to the Services performed hereunder, Service Provider may, from time to time, make various payments for the account, or on behalf, of a Recipient with such Recipient’s prior approval, the Parties understand and agree that this Agreement does not make either of them an agent or legal representative of the other for any purpose whatsoever. The provision of the Services hereunder is between separate entities for their own individualized benefit and is governed solely by the terms of this Agreement. The provision or receipt of the Services shall not constitute an express or implied partnership of any kind, a joint venture, an alter ego relationship or any other form of arrangement that does not respect the corporate separateness of each Party hereto or that would otherwise give rise to alter ego, veil piercing or other types of remedies or liability. No Party is granted, by this Agreement or otherwise, any right or authority to assume or create any obligations or responsibilities, express or implied, on behalf of or in the name of any other Party, or to bind any other Party in any manner whatsoever. The Parties expressly acknowledge (i) that Service Provider is an independent contractor with respect to each Recipient in all respects, including, without limitation, the provision of the Services, and (ii) that Service Provider, on the one hand, and each Recipient, on the other hand, are not agents, partners, joint venturers, fiduciaries, alter egos or employees of or with each other by virtue of this Agreement or the provision or receipt of the Services.

 

1.7 Prohibited Activities . Service Provider shall not, in its capacity as a Service Provider under this Agreement, enter into, amend, terminate or otherwise modify any agreement in the name of Recipient; provided , however , that, pursuant to the terms of this Agreement (including Article 2 ), Service Provider shall be entitled to hire or engage on its behalf any Subcontractors incident to the provision of, and necessary to perform, the Services in accordance with the terms of this Agreement and, in connection with the provision of the Services, may assist a Recipient in sourcing products and services under Third Party Contracts to which Service Provider is a party.

 

1.8 Non-exclusivity . Service Provider will not be required to perform the Services hereunder on an exclusive basis, but will devote such time to its duties hereunder as is reasonably necessary for the performance of such Services. This Agreement will not prevent Service Provider, or be construed as preventing any affiliate of Service Provider or a Subcontractor, from engaging in any business.

 

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1.9 No Fiduciary Duty . Each Recipient hereby expressly and irrevocably waives, to the fullest extent permitted by applicable law, all fiduciary and similar duties under all applicable laws with respect to Service Provider in connection with the performance of the Services. Furthermore, no Party by the provision or receipt of the Services is or shall be deemed a fiduciary for any other Party and each Party hereto expressly acknowledges that this Agreement does not give rise to a fiduciary relationship or create fiduciary duties of any kind with any other Party hereto.

 

1.10 New Recipients . Additional subsidiaries of MGP may become Recipients under this Agreement upon such subsidiaries and Service Provider executing a counterpart signature page to this Agreement; provided that such additional subsidiaries may be provided with the Services prior to such entity executing a counterpart signature page so long as such entity executes such counterpart as promptly as commercially practicable following commencement of its receipt of the Services, and upon execution of a counterpart signature page, any prior services provided by Service Provider to such entity shall be deemed Services governed by this Agreement and such entity shall be deemed a Recipient for purposes hereof. Notwithstanding the foregoing, Service Provider shall not be obligated to provide the Services to new Recipients unless the scope, pricing and terms for such new Recipients have been agreed upon by such subsidiary and Service Provider and such subsidiary executes a counterpart signature page to this Agreement.

 

1.11 Third Party Contracts . Each of Service Provider, on the one hand, and each Recipient, on the other hand, acknowledges that (i) the other is (or may become) party to certain contracts with third parties used in the ultimate provision of certain of the Services to such Recipient (each a “ Third Party Contract ”) and (ii) any Party to a Third Party Contract shall make all decisions, in its sole discretion, regarding whether to renew or terminate (including early termination) each such Third Party Contract; provided , however , that (A) the terminating Party shall not incur any incremental obligation for termination charges that could be passed through to the other Party hereunder without the other Party’s prior written consent and (B) any such decision by Service Provider to elect not to renew or to terminate any such Third Party Contract shall not affect Service Provider’s obligations to provide the Services as provided herein.

 

2. PROVISION OF SERVICES; CERTAIN RESPONSIBILITY

 

2.1 Subcontractors . Service Provider may hire or engage one or more third parties (each, a “ Subcontractor ”) to perform any or all of its obligations under this Agreement; provided , that Service Provider shall use the same degree of care in selecting each Subcontractor as it would if such Subcontractor was being retained to provide similar services to Service Provider.

 

2.2 Responsibility . Service Provider accepts and agrees to be responsible for the appointment of the appropriate employees and/or Subcontractors to carry out the Services. At all times during the Term, each Subcontractor and each employee of Service Provider shall continue to be solely a Subcontractor or an employee of Service Provider, as applicable, and shall not, unless otherwise agreed in writing by the Parties, become a Subcontractor or an employee of any Recipient. Subcontractors and employees of Service Provider shall be subject to the personnel policies and other terms and conditions administered by Service Provider with respect to its employees and subcontractors generally. It shall be the responsibility of Service Provider to pay all necessary employment taxes as required by applicable law with respect to any of its employees and report such employees’ income to the appropriate tax authorities and withhold all taxes from such income, in each case, as required by applicable law.

 

2.3 Compliance with Law . Each Party shall be responsible for its own compliance with all applicable laws related to the performance by it of its obligations under this Agreement. The provision of the Services described in the Scope of Services is subject to Service Provider obtaining applicable gaming or other regulatory approvals to the extent such approvals are required by applicable law.

 

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3. PAYMENT

 

3.1 Service Fee . In consideration of providing the Services, Service Provider will charge the OP fees indicated for each Service as described in the Scope of Services (each, as estimated in the Scope of Services based on projected actual costs to be incurred, a “ Service Fee ” and collectively, the “ Service Fees ”), which amount or method of allocation may be modified, supplemented or amended or otherwise determined by Service Provider from time to time in its commercially reasonable good faith business judgment upon three (3) months prior notice to Recipient.

 

3.2 Expenses . In addition to the Service Fees, Service Provider shall also be entitled to charge the OP for its reasonable out-of-pocket costs and expenses incurred by Service Provider in providing the Services to the Recipients (“ Expenses ”).

 

3.3 Invoices . Within thirty (30) days after the end of each calendar month or as frequently as otherwise determined by Service Provider from time to time, Service Provider shall send the OP an invoice that includes in reasonable detail the Service Fees and Expenses due for the Services provided to the Recipients for the preceding period. Payments of invoices shall be made by check or wire transfer of immediately available funds to one or more accounts specified in writing by Service Provider. Payment shall be made within thirty (30) days after the date of receipt of Service Provider’s invoice.

 

3.4 No Set Off . All amounts payable to Service Provider hereunder shall be paid, and all payments to Service Provider hereunder shall be made, without set-off, deduction, abatement or counterclaim.

 

3.5 Maintenance of Books and Records . Service Provider shall keep reasonably detailed books and records related to its provision of the Services, including the Services rendered and amounts paid in accordance with this Agreement.

 

3.6 Access to Books and Records .

 

3.6.1 Service Provider shall make the books and records referred to in Section 3.5 available for inspection by the Recipient or its authorized representatives during normal business hours, upon reasonable notice to Service Provider, and shall retain such books and records for periods consistent with the retention policies applicable to Service Provider’s business (or such longer period as reasonably requested in writing by the Recipient)

 

3.6.2 Upon thirty (30) days’ advance notice to Service Provider, a Recipient may inspect (or cause an independent third party inspector to inspect), during regular business hours and in a manner that complies with the building and security requirements of Service Provider, the books, records and facilities of Service Provider pertaining to the provision of the Services pursuant to this Agreement to the extent necessary to determine Service Provider’s compliance with this Agreement or as may otherwise be required to ensure compliance with applicable laws or regulations. A Recipient shall have the right to inspect such books, records and facilities of Service Provider once for each twelve (12) month period during the term of this Agreement (or on other occasions to the extent required by applicable law or regulations). Any inspection under this Section 3.6.2 shall not interfere unreasonably with the operations of Service Provider. Such Recipient shall reimburse Service Provider for any reasonable, documented, out-of-pocket costs incurred in connection with such inspection.

 

4. INDEMNIFICATION

 

4.1

The OP shall indemnify, hold harmless and defend Service Provider and each of its Affiliates (as defined in the Contribution Agreement) or any permitted successors and permitted assigns (the “ Indemnified

 

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  Parties ”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (each, a “ Loss ”), relating to, resulting from or arising out of the Services provided to the Recipients, whether or not in connection with any third party claim and whether or not Service Provider or any of its Indemnified Parties is a party to such third party claim, except to the extent that any such Loss is a result of the gross negligence or willful misconduct of Service Provider or any of its Indemnified Parties. Notwithstanding the foregoing, the foregoing indemnification obligations shall not include any Loss relating to, resulting from or arising out of Service Provider’s material breach of this Agreement.

 

4.2 Without limiting the generality of the foregoing in Section 4.1 and subject to Article 5 , in the event of a material breach of this Agreement, or the gross negligence or willful misconduct by Service Provider, Service Provider shall indemnify, hold harmless and defend each Recipient and each of its respective Indemnified Parties from and against any and all Losses incurred as a result of such material breach, gross negligence or willful misconduct.

 

4.3 Each of Service Provider, on the one hand, or a Recipient, on the other hand, shall provide written notice to other Party of any event allegedly giving rise to a Loss under this Agreement, and such other Party shall have fifteen (15) days after receipt of such written notice to cure or correct the error or defect at such other Party’s expense.

 

5. LIMITATIONS OF LIABILITY

 

5.1 Service Provider shall not have any liability, in contract, tort or otherwise, for or in connection with any Services rendered or to be rendered by Service Provider or the Subcontractors pursuant to this Agreement, the transactions contemplated by this Agreement or such Service Provider’s or Subcontractor’s actions or inactions in connection with any such Services or transactions, except to the extent that a Recipient suffers a Loss that results from Service Provider’s or any Subcontractor’s material breach of this Agreement or any gross negligence or willful misconduct in connection with the provision of any such Services or transactions, actions or inactions; provided , however , that notwithstanding anything to the contrary contained herein, except with respect to any breach of Section 7 (Confidentiality), the aggregate liability of Service Provider with respect to Losses incurred by any Recipient and its Indemnified Parties shall not exceed an amount equal to the sum of the total amounts paid by such Recipient to Service Provider under Section 3.1 of this Agreement.

 

5.2 Notwithstanding anything to the contrary contained herein, except with respect to any breach of Section 7 (Confidentiality), the aggregate liability of a Recipient under this Agreement with respect to Losses incurred by Service Provider and its Indemnified Parties shall not exceed an amount equal to the sum of the total amounts paid by such Recipient to Service Provider under Section 3.1 of this Agreement.

 

5.3 In no event shall Service Provider be liable for any Loss arising from, or connected with, a Recipient’s and/or its employees’ (i) non-compliance with or inappropriate implementation of the instructions of Service Provider or any of the Subcontractors in connection with provision of the Services, (ii) fraudulent acts or omissions, (iii) misrepresentations or (iv) breach of this Agreement.

 

5.4 Notwithstanding anything to the contrary in this Agreement, in no event shall any party be liable to another party for (i) punitive damages, (ii) damages that are not the natural, probable and reasonably foreseeable result of a breach of this Agreement or (iii) damages based on loss of business reputation, unless, in each case, any such damages become payable to a third party.

 

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5.5 Nothing in this Article 5 shall be deemed to eliminate or limit, in any respect, a Recipient’s express obligation in this Agreement to pay the Service Fees for the Services rendered in accordance herewith or reimburse other costs and Expenses to the extent expressly provided herein.

 

6. INTELLECTUAL PROPERTY RIGHTS

 

6.1 Each Recipient acknowledges that any and all copyrights, trademarks, patents, patentable inventions, trade secrets, and other intellectual property rights, whether or not registered (“ IP Rights ”), owned by Service Provider or the applicable Subcontractors and used in connection with the provision of the Services rendered hereunder are and shall remain the property of Service Provider or the applicable Subcontractors, as applicable. Service Provider and each of the applicable Subcontractors acknowledge that all IP Rights owned by each Recipient and used in connection with the provision of the Services rendered hereunder are and shall remain the property of such Recipient.

 

6.2 No Party shall, during or at any time after the expiry or termination of this Agreement, in any way contest or dispute the ownership of any IP Rights of any other Party.

 

6.3 Notwithstanding anything to the contrary under this Agreement, no Recipient is granted a license or any right to use any IP Right belonging to Service Provider or any of the Subcontractors. To the extent a Recipient has the right to grant a license to its IP Rights, such Recipient hereby grants to Service Provider a world-wide, royalty-free, non-transferable (but sub-licensable to a Subcontractor solely for purposes of providing the Services) license to use, for the duration of the Term (but only to provide the Services hereunder), any IP Rights that such Recipient owns or has a license to use (to the extent such license is sub-licensable) and that is needed by Service Provider or any Subcontractor in connection with the provision of the Services hereunder.

 

7. CONFIDENTIALITY

 

7.1 The confidentiality obligations of Section 7.2 of the Contribution Agreement shall govern, mutatis mutandis .

 

8. FORCE MAJEURE

 

8.1 Neither of Service Provider, on the one hand, nor any Recipient, on the other hand, (or any person or entity acting on their behalf) shall have any liability or responsibility for the failure to fulfill any obligation (other than a payment obligation) under this Agreement so long as, and to the extent, the fulfillment of such obligation is prevented, frustrated, hindered or delayed as a result of the circumstances of a Force Majeure Event (as defined below); provided , that such Party (or such person or entity acting on its behalf) shall have exercised commercially reasonable efforts to minimize the effect of such Force Majeure Event on its obligations hereunder.

 

8.2 During the pendency of a Force Majeure Event, upon written notice to Service Provider, each Recipient shall be (i) entitled to seek an alternative service provider with respect to any Services that Service Provider is unable to provide as a result of the Force Majeure Event and (ii) shall be relieved of the obligation to pay for such Services throughout the duration of such Force Majeure Event other than with respect to the Services that have already been performed, in each case, if a Force Majeure Event shall continue to exist for more than fifteen (15) consecutive days.

 

8.3

For purposes of this Agreement, a “ Force Majeure Event ” means an event the circumstances of which are beyond the control of the Party concerned, which shall include (but shall not be limited to) acts of God, perils of the sea or air, fire, flood, drought, explosion, any other natural disaster, financial crisis in the

 

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  United States or globally, sabotage, accident, riot, civil commotion, national or regional emergency, acts of government, acts of war, strikes, lockouts or any other event which is beyond the reasonable control of such Party.

 

9. EFFECTIVE DATE; TERM AND TERMINATION

 

9.1 This Agreement shall be effective on the Effective Date and end on the date upon which the Agreement is terminated in accordance with this Article 9 (the “ Term ”).

 

9.2 Each of Service Provider, on the one hand, and each Recipient, on the other hand, has the right to terminate this Agreement if the other Party is in material breach or is in material default of any obligation hereunder (i) which breach or default is incapable of being cured, upon written notice of such default by the non-defaulting Party, or (ii) which breach or default is capable of being cured and has not been cured within thirty (30) days after receipt of written notice of such default by the non-defaulting Party (or such other cure period as the non-defaulting Party may authorize in writing). The Parties shall cooperate in good faith to cure any such breach within the time period provided in the immediately preceding sentence. Any termination in accordance with this Section 9.2 shall not require the initiation or completion of any legal proceeding or other formality.

 

9.3 Each of Service Provider, on the one hand, and each Recipient, on the other hand, has the right to terminate this Agreement upon written notice to the other Party in the event such other Party (i) is or becomes insolvent, (ii) commences voluntary or involuntary bankruptcy, insolvency, moratorium or receivership proceedings or (iii) initiates the winding-up or dissolution of such Party.

 

9.4 Notwithstanding anything to the contrary in this Article 9 , this Agreement or any individual Service listed in the Scope of Services may be terminated as between Service Provider and a Recipient (i) by mutual written consent of both Service Provider and such Recipient, (ii) by Service Provider upon three (3) months prior written notice to such Recipient, or (iii) by such Recipient upon thirty (30) days prior written notice to Service Provider; provided , that with respect to (iii) above only, to the extent there are any break-up costs (including commitments made to or in respect of personnel or third parties due to the requirement to provide the Services and prepaid expenses related to the Services, or costs related to terminating such commitments) incurred by Service Provider as a result of such termination, Service Provider shall use its commercially reasonable efforts to mitigate such costs and the OP shall bear such costs and reimburse Service Provider in full for the same. Notwithstanding anything to the contrary in this Article 9 , and for the avoidance of doubt, the termination of this Agreement by one or more Recipients shall not affect the validity or enforceability of this Agreement (or the requirement to continue to provide the Services hereunder) with respect to Service Provider or any other Recipient that has not provided written notice or consent of the termination of this Agreement.

 

9.5 Notwithstanding the expiration or early termination of this Agreement, upon any expiration or early termination of this Agreement, (i) all payments for the Services already performed by Service Provider or the Subcontractors as of such expiration or early termination shall be immediately due and payable by Recipient and (ii) the following provisions of this Agreement shall survive until the earlier of the applicable statute of limitations or their respective term as provided therein: Article 4 , Article 5 , Article 6 , Article 7 , this Article 9 , Article 10 , Article 11 and Article 12 .

 

10. REPRESENTATIONS AND WARRANTIES

Each Party hereby represents and warrants, as of the Effective Date, for the benefit of each other Party as follows:

 

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10.1 Organization and Authority . Such Party is duly organized and validly existing under the laws of its jurisdiction of incorporation or formation, as applicable, has all the corporate, limited liability company, partnership or other similar power, as applicable, and authority to own its property and carry on its business and has taken all necessary action authorizing it to execute deliver and perform its obligations under this Agreement.

 

10.2 No Conflicts . The execution, delivery and performance by such Party of this Agreement does not violate or conflict with, or result in a default under, its organizational documents, any agreement or instrument by which such Party is bound or any provision of applicable law.

 

10.3 Consents and Approvals . Subject to the receipt of any applicable consent or authorization from any third party or governmental entity that is a condition to the effectiveness of this Agreement with respect to any Recipient as provided in Section 9.1 , each such Party has obtained any and all authorizations and consents and approvals of any third party or governmental entity that are required for such Party to execute, deliver and perform its obligations under this Agreement or in order for such Party to receive the Services hereunder.

 

10.4 Binding Agreement. Assuming the due authorization, execution and delivery of this Agreement by the other Party, this Agreement constitutes the legal, valid and binding obligation of such Party, enforceable against it in accordance with its terms, subject to bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium and similar laws of general applicability relating to or affecting creditors’ rights and to general equity principles.

 

10.5 No Litigation . There are no actions, suits or proceedings pending or, to such Party’s knowledge, threatened against or affecting such Party before any court or administrative body or arbitral tribunal that could reasonably be expected to materially and adversely affect the ability of such Party to perform its obligations under this Agreement.

 

10.6 No Bankruptcy . Such Party is not subject to any bankruptcy, temporary receivership, liquidation or insolvency proceedings, or any order by a court having jurisdiction for its dissolution, liquidation or winding up.

 

10.7 NO OTHER WARRANTIES OR REPRESENTATIONS . EXCEPT AS PROVIDED IN SECTION 1.3 OR THIS ARTICLE 10 , THE SERVICES ARE PROVIDED “AS IS” AND SERVICE PROVIDER MAKES NO WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, QUALITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ANY SERVICES PROVIDED HEREUNDER.

 

11. NOTICES

 

11.1 All notices, requests, claims, demands and other communications under this Agreement shall be in writing and shall be given or made (and shall be deemed to have been duly given or made upon receipt) by delivery in person, by overnight courier service, by facsimile or email with receipt confirmed (followed by delivery of an original via overnight courier service) or by registered or certified mail (postage prepaid, return receipt requested) to the respective Parties at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 11.1 ):

If to Service Provider, to:

MGM Resorts International

 

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3600 Las Vegas Blvd. So.,

Las Vegas, Nevada 89109

If to MGP, to:

MGM Growth Properties LLC

3950 Las Vegas Blvd. So.,

Las Vegas, Nevada 89119

If to the OP, to:

MGM Growth Properties Operating Partnership LP

3950 Las Vegas Blvd. So.,

Las Vegas, Nevada 89119

 

12. MISCELLANEOUS

 

12.1 Entire Agreement . This Agreement as well as any other agreements and documents referred to herein (including the Scope of Services and the Contribution Agreement, to the extent applicable), constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all previous agreements, negotiations, discussions, understandings, writings, commitments and conversations between the Parties with respect to such subject matter.

 

12.2 Modification and Waiver . No provision of this Agreement may be amended or modified with respect to Service Provider or any Recipient unless such amendment or modification is agreed to in writing and signed by the authorized representative of Service Provider, on the one hand, and the affected Recipient, on the other hand. No waiver by any Party of any breach by another Party of any condition or provision of this Agreement to be performed by such other Party shall be deemed a waiver of any similar or dissimilar provision or condition at the same or any prior or subsequent time, nor shall the failure of or delay by any of the Parties in exercising any right, power or privilege hereunder operate as a waiver thereof to preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.

 

12.3 Dispute Resolution . The provisions of Article VIII of the Contribution Agreement shall apply, mutatis mutandis , to all disputes, controversies or claims (whether arising in contract, tort or otherwise) that may arise out of or relate to, or arise under or in connection with, this Agreement or the transactions contemplated hereby.

 

12.4 Severability . If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced under any law or as a matter of public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not affected in any manner materially adverse to any Party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the affected Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of such Parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated by this Agreement be consummated as originally contemplated to the greatest extent possible.

 

12.5

Assignments and Successors . This Agreement may not be assigned by a Recipient, on the one hand, or Service Provider, on the other hand (each, an “ Assigning Party ”), whether by operation of law or otherwise, unless approved in writing by the non-Assigning Party; provided , that an Assigning Party may

 

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  assign, pledge and/or grant a security interest in this Agreement, without such other non-Assigning Party’s consent to (i) any of the Assigning Party’s lenders or other third parties providing credit to such Assigning Party, (ii) any of the Assigning Party’s affiliates or (iii) any purchaser of all or substantially all of the Assigning Party’s assets, or any successor to such Assigning Party by merger, consolidation or any similar transaction. Except as otherwise expressly provided in the preceding sentence, this Agreement shall be binding on and inure solely to the benefit of the Parties and their permitted successors and permitted assigns.

 

12.6 No Third Party Beneficiaries . Except as provided in Article VIII of the Contribution Agreement with respect to the Indemnified Parties (which are express third party beneficiaries to this Agreement), this Agreement is for the sole benefit of the Parties and their permitted successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever, including any rights of employment for any specified period, under or by reason of this Agreement.

 

12.7 Further Assurances . Each Party covenants and agrees that, without any additional consideration, it shall execute and deliver any further legal instruments and perform any acts that are or may become necessary to effectuate this Agreement.

 

12.8 Rules of Construction . Interpretation of this Agreement shall be governed by the following rules of construction: (i) references to the terms Article and Section are references to the Articles and Sections of this Agreement unless otherwise specified; (ii) the terms “hereof,” “herein,” “hereby,” “hereto,” and derivative or similar words refer to this entire Agreement; (iii) references to “$” shall mean U.S. dollars; (iv) references to “written” or “in writing” include in electronic form; (v) the headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement; (vi) each Party has participated in the negotiation and drafting of this Agreement and if an ambiguity or question of interpretation should arise, this Agreement shall be construed as if drafted jointly by the Parties and no presumption or burden of proof shall arise favoring or burdening either Party by virtue of the authorship of any of the provisions in any of this Agreement; (vii) any reference to “days” means calendar days unless business days are expressly specified; and (viii) when calculating the period of time before which, within which or following which any act is to be done or step taken pursuant to this Agreement, the date that is the reference date in calculating such period shall be excluded, if the last day of such period is not a business day, and the period shall end on the next succeeding business day.

 

12.9 Counterparts . This Agreement may be executed by a Party in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same Agreement. Delivery of an executed counterpart of a signature page to this Agreement by facsimile, electronic mail or other electronic methods shall be as effective as delivery of a manually executed counterpart of this Agreement.

 

12.10 Non-Recourse . No past, present or future officer, director, shareholder, partner, member, principal, employee, agent, affiliate, attorney or representative of any Party or its respective affiliates shall have any responsibility for any obligations or liabilities of such Party under this Agreement of or for any claim based on, in respect of, or by reason of, the Services or the transactions contemplated hereby.

 

12.11 Governing Law; Jurisdiction . This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York irrespective of the choice of laws principles thereof. In addition, other than disputes, controversies or claims (whether arising in contract, tort or otherwise) governed by the mediation and/or arbitration procedures set forth in Article VIII of the Contribution Agreement, the Parties agree that any legal action or proceeding regarding this Agreement shall be brought and determined exclusively in a state or federal court located within the State of New York.

 

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[ Signature Page Follows ]

 

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IN WITNESS WHEREOF , the Parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

 

SERVICE PROVIDER:
MGM RESORTS INTERNATIONAL
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Executive Vice President, General Counsel and Secretary

 

[CORPORATE SERVICES AGREEMENT]

RECIPIENT:
MGM GROWTH PROPERTIES LLC
By:  

/s/ Andy H. Chien

Name:   Andy H. Chien
Title:   Chief Financial Officer

 

[CORPORATE SERVICES AGREEMENT]

RECIPIENT:
MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP

By: MGM Growth Properties OP GP LLC,

its General Partner

By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary

 

[CORPORATE SERVICES AGREEMENT]

Exhibit 10.3

REGISTRATION RIGHTS AGREEMENT

BY AND AMONG

MGM GROWTH PROPERTIES LLC,

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP,

AND

THE INVESTORS PARTY HERETO

Dated April 25, 2016

TABLE OF CONTENTS

 

ARTICLE I   
CERTAIN DEFINITIONS   
ARTICLE II   
REGISTRATION REQUEST   

SECTION 2.1.

 

Request

     4   

SECTION 2.2.

 

Piggyback Registration

     4   

SECTION 2.3.

 

Expenses

     5   

SECTION 2.4.

 

Other Registration

     5   
ARTICLE III   
INCIDENTAL AND SHELF REGISTRATION   

SECTION 3.1.

 

Notice and Incidental Registration

     5   

SECTION 3.2.

 

Shelf Registration Statement

     7   
ARTICLE IV   
PROCEDURES   

SECTION 4.1.

 

Registration and Qualification

     8   

SECTION 4.2.

 

Underwriting

     10   

SECTION 4.3.

 

Blackout Periods

     11   

SECTION 4.4.

 

Qualification for Rule 144 Sales

     12   
ARTICLE V   
PREPARATION; REASONABLE INVESTIGATION   

SECTION 5.1.

 

Preparation; Reasonable Investigation

     13   
ARTICLE VI   
RESTRICTIONS ON PUBLIC SALE   

SECTION 6.1.

 

Restrictions on Public Sale

     13   
ARTICLE VII   
INDEMNIFICATION AND CONTRIBUTION   

SECTION 7.1.

 

Indemnification

     14   
ARTICLE VIII   
BENEFITS OF REGISTRATION RIGHTS   

SECTION 8.1.

 

Benefits of Registration Rights

     18   
ARTICLE IX   
MISCELLANEOUS   

SECTION 9.1.

 

No Inconsistent Agreements

     18   

SECTION 9.2.

 

Captions

     18   

SECTION 9.3.

 

Severability

     18   

SECTION 9.4.

 

Modification and Amendment

     18   

 

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TABLE OF CONTENTS

(Continued)

 

SECTION 9.5.

 

Counterparts

     18   

SECTION 9.6.

 

Entire Agreement

     18   

SECTION 9.7.

 

Assignment; Successors and Assigns

     18   

SECTION 9.8.

 

Notices

     19   

SECTION 9.9.

 

Specific Performance

     19   

SECTION 9.10.

 

Dispute Resolution

     19   

SECTION 9.11.

 

Governing Law; Jurisdiction

     19   

 

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REGISTRATION RIGHTS AGREEMENT

This REGISTRATION RIGHTS AGREEMENT (this “ Agreement ”) is dated as of April 25, 2016, by and among MGM Growth Properties LLC, a Delaware limited liability company (the “ Company ”), certain wholly-owned subsidiaries of MGM Resorts International, a Delaware corporation (“ MGM ”), listed as “Holders” on the signatures pages hereto (each, a “ Holder ” and collectively, the “ Holders ”), the Permitted Transferees (as defined below) that become party hereto in accordance with this Agreement (the Holders and such entities or Permitted Transferees are sometimes referred to herein individually as an “ Investor ” and collectively as the “ Investors ”) and MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Partnership ”).

W I T N E S S E T H:

WHEREAS, the Investors own certain Common Units (as defined below);

WHEREAS, subject to the various limitations contained in the Partnership Agreement (as defined below), the Investors are entitled to redeem their Common Units for cash or, at the election of the conflicts committee of the Board of Directors of the Company on behalf of the Company, REIT Class A Shares (as defined below); and

WHEREAS, the Company desires to provide to the Investors certain registration rights as set forth herein with respect to the REIT Class A Shares issuable by the Company in respect of the redemption of Common Units pursuant to the Partnership Agreement.

NOW THEREFORE, in consideration of the mutual covenants and undertakings contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and subject to and on the terms and conditions herein set forth, the parties hereto agree as follows:

ARTICLE I

CERTAIN DEFINITIONS

1.1 “ Affiliates ” has the meaning set forth in Rule 12b-2 of the General Rules and Regulations under the Exchange Act.

1.2 “ Agreement ” is defined in the preamble of this Agreement.

1.3 “ Blackout Period ” is defined in Section 4.3(a) .

1.4 “ Business Day ” means any day on which the New York Stock Exchange or such other exchange as the REIT Class A Shares are listed is open for trading.

1.5 “ Common Units ” has the meaning given to such term in the Partnership Agreement.

1.6 “ Company ” is defined in the preamble of this Agreement and shall include any successor thereto.

1.7 “ Company Securities ” is defined in Section 3.1 .

1.8 “ Contribution Agreement ” means the Master Contribution Agreement, to be entered into in connection with the IPO, by and among MGM, the Company and the Partnership.

1.9 “ Effectiveness Period ” is defined in Section 3.2(a) .

1.10 “ Eligible Securities ” means all or any portion of the REIT Class A Shares acquired or that may be acquired by an Investor or its designee upon redemption, conversion or exchange of Common Units, and any other securities issued or issuable with respect to, on account of or in exchange for Eligible Securities, whether by stock split, stock dividend, recapitalization, merger, charter amendment or otherwise that are held by an Investor or its designee. Eligible Securities shall cease to be Eligible Securities when (i) a registration statement with respect to the sale of such Eligible Securities shall have become effective under the Securities Act and such Eligible Securities shall have been disposed of in accordance with such registration statement, (ii) such Eligible Securities shall have been otherwise transferred pursuant to Rule 144 (or any successor rule) or pursuant to another applicable exemption from registration under the Securities Act to a Person that is not an Investor or a designee thereof, new certificates for such Eligible Securities not bearing a legend restricting further transfer shall have been delivered by the Company and such Eligible Securities shall be freely transferable to the public (without limitations on volume) without registration under the Securities Act or (iii) such Eligible Securities are no longer outstanding.

1.11 “ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC thereunder.

1.12 “ Holder ” is defined in the preamble of this Agreement.

1.13 “ Information Blackout ” is defined in Section 4.3(a) .

1.14 “ Investor ” is defined in the preamble of this Agreement.

1.15 “ IPO ” means the initial public offering of the Company.

1.16 “ Lock-up Commitment ” is defined in Section 6.1(a) .

1.17 “ MGM ” is defined in the preamble of this Agreement.

1.18 “ Other Securities ” is defined in Section 2.2 .

1.19 “ Participating Holder ” is defined in Section 2.2 .

1.20 “ Partnership ” is defined in the preamble of this Agreement.

1.21 “ Partnership Agreement ” means the Amended and Restated Agreement of Limited Partnership of the Partnership, to be entered into in connection with the IPO, as the same may be amended, restated or supplemented from time to time.

 

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1.22 “ Person ” means an individual, a partnership (general or limited), corporation, real estate investment trust, joint venture, business trust, cooperative, limited liability company, association or other form of business organization, whether or not regarded as a legal entity under applicable law, a trust (inter vivos or testamentary), an estate of a deceased, insane or incompetent person, a quasi-governmental entity, a government or any agency, authority, political subdivision or other instrumentality thereof, or any other entity.

1.23 “ Permitted Transferees ” means any Affiliate of the Holders that has become a party hereto in accordance with Section 9.7 .

1.24 “ Qualifying Other Holder ” is defined in Section 2.2 .

1.25 “ Registration Delay ” is defined in Section 4.3(a) .

1.26 “ Registration Expenses ” means all expenses incurred in connection with the Company’s performance of or compliance with the registration requirements set forth in this Agreement, including, without limitation, the following: (i) the fees, disbursements and expenses of the Company’s counsel(s) (United States and foreign), accountants, experts and other persons retained by the Company in connection with the registration, offering and sale of Eligible Securities to be disposed of under the Securities Act; (ii) all expenses in connection with the preparation, printing and filing of any registration statement, any preliminary prospectus, final prospectus or free writing prospectus, any other offering document and amendments and supplements thereto and the mailing and delivering of copies thereof to the underwriters and dealers; (iii) the cost of printing or producing any agreement(s) among underwriters, underwriting agreement(s) and blue sky or legal investment memoranda, any selling agreements and any other documents in connection with the offering, sale or delivery of Eligible Securities to be disposed of; (iv) all expenses in connection with the qualification of Eligible Securities to be disposed of for offering and sale under state securities laws (v) the filing fees incident to securing any required review by the Financial Industry Regulatory Authority (or any successor thereto) of the terms of the sale of Eligible Securities to be disposed of; (vi) SEC and blue sky registration fees attributable to Eligible Securities; (vii) the fees and expenses incurred in connection with the listing of Eligible Securities on each securities exchange or quotation system on which the Company’s equity securities are then listed; (viii) the reasonable fees and disbursements for one counsel or firm to the Investors (as well as one local counsel) selected by the Holder; (ix) Securities Act liability insurance or similar insurance if the Company so desires or the underwriters so require in accordance with then-customary underwriting practice; and (x) all expenses related to the “road-show” for any underwritten offering, including all travel, meals and lodging, to the extent not borne by the underwriters; provided , however , that Registration Expenses with respect to any registration pursuant to this Agreement shall not include underwriting discounts or commissions attributable to Eligible Securities, any out-of-pocket expenses of the Selling Investors (including any fees and expenses of their brokers) or transfer taxes applicable to Eligible Securities.

1.27 “ Registration Request Notice ” is defined in Section 2.1 .

1.28 “ REIT Class A Shares ” has the meaning given to such term in the Partnership Agreement and shall include equivalent securities of any successor to the Company.

 

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1.29 “ Requesting Investor ” means an Investor requesting registration of its Eligible Securities in accordance with the terms hereof.

1.30 “ SEC ” means the United States Securities and Exchange Commission.

1.31 “ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC thereunder, all as the same shall be in effect at the relevant time.

1.32 “ Selling Investor ” means the Requesting Investor and each Investor who has requested registration pursuant to Articles II or III , as applicable.

1.33 “ Shelf Registration Statement ” is defined in Section 3.2(a) .

1.34 “ Underwritten Offering Notice ” is defined in Section 6.1(a) .

ARTICLE II

REGISTRATION REQUEST

SECTION 2.1. Request . From and after the one (1) year anniversary of the first day of the first full calendar month following the date of this Agreement and subject to Section 4.3 , upon written request from a Requesting Investor requesting that the Company effect the registration under the Securities Act of all or part of the Eligible Securities held by such Investor, which notice may be delivered at any time after such one (1) year anniversary and which notice shall specify the intended method or methods of disposition of such Eligible Securities (the “ Registration Request Notice ”), unless such Eligible Securities are included in a currently effective registration statement of the Company permitting the resale of such Eligible Securities in the manner contemplated by the Requesting Investor, the Company will use its reasonable best efforts to (as promptly as practicable) file the appropriate registration statement under the Securities Act with the SEC and (as promptly as reasonably practicable, but in any event within 180 days of such request) cause such registration statement to be declared effective by the SEC and to permit the disposition of such Eligible Securities in accordance with the intended method or methods of disposition stated in such request; provided , that:

(a) if the Company shall have previously caused a registration statement to be declared effective by the SEC with respect to Eligible Securities pursuant to Article III , the Company shall not be required to cause a subsequent registration statement to be declared effective by the SEC pursuant to this Article II until a period of ninety (90) days shall have elapsed from the effective date of the most recent such previous registration, unless such earlier registration was pursuant to Section 3.1 and the Selling Investors in connection therewith were subjected to a cutback in accordance with Section 3.1(e) ; and

(b) the Company shall not be required to effect (i) more than three (3) registrations pursuant to this Article II in any calendar year or (ii) a registration of Eligible Securities, the fair market value of which on the date of receipt by the Company of the Registration Request Notice is less than $5,000,000.

SECTION 2.2. Piggyback Registration . If at any time the Company proposes to register any REIT Class A Shares, any equity securities exercisable for, convertible into or

 

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exchangeable for REIT Class A Shares, or other securities issued by it having terms substantially similar to Eligible Securities for public resale under the Securities Act by any holder of registration rights, pursuant to a registration rights agreement entered into by it with the Company on or after the date of this Agreement (a “ Qualifying Other Holder ”, and such securities, “ Other Securities ”) and on a form and in a manner which would permit registration of Eligible Securities for sale to the public under the Securities Act, it will give prompt written notice to the Investors of its intention to do so, and upon the written request of any Investor delivered to the Company within ten (10) Business Days after the giving of any such notice (which request shall specify the number of Eligible Securities intended to be disposed of by the Investor and the intended method of disposition thereof), the Company will use reasonable best efforts to effect, in connection with the registration of the Other Securities, the registration under the Securities Act of all Eligible Securities which the Company has been so requested to register by the Selling Investor(s) (each a “ Participating Holder ”), to the extent required to permit the disposition (in accordance with the intended method or methods thereof as aforesaid) of Eligible Securities so to be registered, provided , however , that if the Company shall have been advised by a nationally recognized independent investment banking firm selected by the Company and/or the Qualifying Other Holder and reasonably acceptable to the Participating Holders to act as lead underwriter in connection with the public offering of securities under this Section 2.2 that, in such firm’s opinion, a registration of Eligible Securities requested to be registered at that time would materially and adversely affect the scheduled offering of securities, then the aggregate number of securities requested to be included in such registration by the Participating Holders and the Qualifying Other Holder(s) shall be reduced pro rata among the Participating Holders and the Qualifying Other Holder(s) according to the total number of securities requested to be registered by such Persons. Notwithstanding any request under this Section 2.2 , a Selling Investor may elect in writing prior to the effective date of a registration under this Section 2.2 not to register its Eligible Securities in connection with such registration.

SECTION 2.3. Expenses . The Company shall bear all Registration Expenses in connection with any registration pursuant to this Article II , whether or not such registration statement becomes effective; provided , however , that if the Investors request a registration pursuant to Section 2.1 and subsequently withdraw their request, then such Investors shall either pay all Registration Expenses incurred in connection with such registration or forfeit the right to request another registration during the subsequent ninety (90) days, unless the withdrawal of such request is the result of facts or circumstances relating to the Company or the REIT Class A Shares that arise after the date on which such request was made and would have a material adverse effect on the offering of the Eligible Securities or such withdrawal occurs after the implementation of, and within twenty (20) Business Days after the end of, a Blackout Period.

SECTION 2.4. Other Registration . No registration of Eligible Securities effected under this Article II shall relieve the Company of its obligation (if any) to effect registration of other Eligible Securities pursuant to Article III .

ARTICLE III

INCIDENTAL AND SHELF REGISTRATION

SECTION 3.1. Notice and Incidental Registration . If the Company proposes to register any REIT Class A Shares, any equity securities exercisable for, convertible into or

 

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exchangeable for REIT Class A Shares, or other securities issued by it having terms substantially similar to Eligible Securities (the “ Company Securities ”) for public sale by the Company under the Securities Act on a form and in a manner which would permit registration of Eligible Securities for sale to the public under the Securities Act, it will give prompt written notice to the Investors of its intention to do so, and upon the written request of any Investor delivered to the Company within ten (10) Business Days after the giving of any such notice (which request shall specify the number of Eligible Securities intended to be disposed of by the Investor and the intended method of disposition thereof), the Company will use reasonable best efforts to effect, in connection with the registration of the Company Securities, the registration under the Securities Act of all Eligible Securities which the Company has been so requested to register by the Selling Investor(s), to the extent required to permit the disposition (in accordance with the intended method or methods thereof as aforesaid) of Eligible Securities so to be registered; provided , that:

(a) If, at any time after giving such written notice of its intention to register any of the Company Securities and prior to the effective date of the registration statement filed in connection with such registration, the Company shall determine for any reason not to register the Company Securities, the Company may, at its election, give written notice of such determination to the Selling Investors and thereupon the Company shall be relieved of its obligation to register such Eligible Securities in connection with the registration of such Company Securities (but not from its obligation to pay Registration Expenses to the extent incurred in connection therewith as provided in Section 3.2 ), without prejudice, however, to the rights (if any) of the Selling Investors immediately to request that such registration be effected as a registration under Article II ;

(b) The Company shall not be required to give notice of or effect any registration of Eligible Securities under this Section 3.1 incidental to the registration of any of its securities in connection with mergers, acquisitions, exchange offers, subscription offers, dividend reinvestment plans or share options or other employee benefit plans;

(c) Notwithstanding any request under this Section 3.1 , a Selling Investor may elect in writing prior to the effective date of a registration under this Section 3.1 not to register its Eligible Securities in connection with such registration;

(d) No registration of Eligible Securities effected under this Section 3.1 shall relieve the Company of its obligation (if any) to effect registration of other Eligible Securities pursuant to Article II or Section 3.2 ;

(e) The Company will not be required to effect any registration pursuant to this Section 3.1 if the Company shall have been advised by a nationally recognized independent investment banking firm selected by the Company to act as lead underwriter in connection with the public offering of securities by the Company that, in such firm’s opinion, a registration of Eligible Securities requested to be registered at that time would materially and adversely affect the scheduled offering of securities; provided , however , that if an offering of some but not all of the Eligible Securities requested to be registered by the Investor(s) would not materially adversely affect the Company’s offering of securities, the aggregate number of Eligible Securities requested to be included in such offering by the Investors shall be reduced such that

 

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securities are included as follows: (1)  first , 100% of the securities that the Company proposes to sell, (2)  second , and only if all the securities referred to in clause (1) have been included, the number of Eligible Securities eligible for inclusion in such registration, allocated pro rata among the Investors according to the total number of Eligible Securities requested to be registered by such Investors; and

(f) The Company shall be responsible for the payment of all Registration Expenses in connection with any registration pursuant to this Section 3.1 .

SECTION 3.2. Shelf Registration Statement .

(a) Shelf Registration Statement . From and after the one (1) year anniversary of the first day of the first full calendar month following the date of this Agreement and subject to Section 4.3 , the Company shall, upon request of any Investor, as promptly as reasonably practicable file with the SEC a registration statement for an offering to be made on a continuous basis pursuant to Rule 415 covering the resale of all of the Eligible Securities (the “ Shelf Registration Statement ”). The Shelf Registration Statement shall be on the appropriate form permitting registration of such Eligible Securities for resale by the Investors in the manner or manners designated by them (including, without limitation, one or more underwritten offerings). The Company will notify each Investor when such Shelf Registration Statement has become effective. The Company shall not be required to maintain in effect more than one shelf registration at any one time pursuant to this Section 3.2(a) . The Company shall (subject to the limitations on registration obligations of the Company set forth in Articles II and III , which shall be applicable with respect to the Shelf Registration) use its reasonable best efforts to cause the Shelf Registration Statement to be declared effective under the Securities Act as promptly as practicable after the filing of the Shelf Registration Statement, or automatically if the Company is eligible to file an automatically effective shelf registration statement, and to keep the Shelf Registration Statement continuously effective under the Securities Act until the date (“ Effectiveness Period ”) when all Eligible Securities covered by the Shelf Registration Statement have been sold in the manner set forth and as contemplated in the Shelf Registration Statement.

(b) Shelf Offerings . Subject to Section 4.3 , the Investors shall have the right to conduct an unlimited number of offerings under the Shelf Registration Statement, including underwritten offerings; provided , that the Company shall have no obligation to effect more than one such underwritten offering in every 90 day period during the Effectiveness Period.

(c) Withdrawal of Stop Orders . If the Shelf Registration Statement ceases to be effective for any reason at any time during the Effectiveness Period (other than because of the sale of all of the securities registered thereunder), the Company shall use its reasonable best efforts to obtain the prompt withdrawal of any order suspending the effectiveness thereof.

(d) Supplement and Amendments . Subject to Section 4.3 , the Company shall promptly supplement and amend the Shelf Registration Statement and the prospectus included therein if required by the rules, regulations or instructions applicable to the registration form used for such Shelf Registration Statement or by the Securities Act.

 

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(e) Other Shares . In no event shall the Company agree to register REIT Class A Shares or any Other Securities for issuance by the Company or resale by any Persons other than the Investors in any registration statement filed pursuant to this Section 3.2 without the express written consent of the Holders, which consent shall be entirely discretionary.

(f) Other Registrations . Notwithstanding any other provisions contained herein to the contrary, the Company shall not be required to effect any shelf registration or to keep any Shelf Registration Statement effective pursuant to this Section 3.2 if the Investors exercise their right to request a demand registration pursuant to Article II and such demand registration includes all of the Eligible Securities owned by all of the Investors and such securities are sold pursuant to such demand registration.

(g) Expenses . The Company shall bear all Registration Expenses in connection with any shelf registration pursuant to this Section 3.2 , whether or not such shelf registration becomes effective; provided , however , that if the Investor(s) request a shelf registration and subsequently withdraw their request, then such Investors shall either pay all Registration Expenses incurred in connection with such shelf registration or forfeit the right to request another shelf registration during the subsequent ninety (90) days, unless the withdrawal of such request is the result of facts or circumstances relating to the Company or the REIT Class A Shares that arise after the date on which such request was made and would have an adverse effect on the offering of the Eligible Securities or such withdrawal occurs after the implementation of, and within twenty (20) Business Days after the end of, a Blackout Period.

ARTICLE IV

PROCEDURES

SECTION 4.1. Registration and Qualification . If and whenever the Company is required to use all reasonable best efforts to effect the registration of any Eligible Securities under the Securities Act as provided in Articles II or III , and subject to the limitations set forth in Sections 2.1 , 2.2 , 3.1 and 3.2 , the Company will, as promptly as is practicable:

(a) prepare, file and use all reasonable best efforts to cause to become effective and to remain continuously effective a registration statement under the Securities Act regarding the Eligible Securities to be offered;

(b) prepare and file with the SEC such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration statement effective and to comply with the provisions of the Securities Act with respect to the disposition of all Eligible Securities until such time as all of such Eligible Securities have been disposed of in accordance with the intended methods of disposition by the Selling Investors set forth in such registration statement;

(c) furnish to the Investors and any of the Selling Investors and to any underwriter of such Eligible Securities such number of conformed copies of such registration statement and of each such amendment and supplement thereto (in each case, including all exhibits), such number of copies of the prospectus included in such registration statement (including each preliminary prospectus and any summary prospectus), in conformity with the

 

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requirements of the Securities Act, such documents incorporated by reference in such registration statement or prospectus, and such other documents as the Selling Investors or such underwriter may reasonably request;

(d) use all reasonable best efforts to register or qualify all Eligible Securities covered by such registration statement under such other securities or blue sky laws of such jurisdictions as the Investor or any of the Selling Investors or any underwriter of such Eligible Securities shall reasonably request, and use all reasonable best efforts to do other acts and things which may be reasonably requested by the Investor or any Selling Investors or any underwriter to consummate the disposition in such jurisdictions of the Eligible Securities covered by such registration statement, except the Company shall not for any such purpose be required to qualify generally to do business as a foreign corporation in any jurisdiction wherein it is not so qualified, or to subject itself to taxation on its income in any jurisdiction where it is not then subject to taxation, or to consent to general service of process in any jurisdiction where it is not then subject to service of process;

(e) use all reasonable best efforts to list the Eligible Securities on each national securities exchange or quotation system on which the REIT Class A Shares are then listed, if the listing of such securities is then permitted under the rules of such exchange;

(f) notify the Investor and any of the Selling Investors as soon as reasonably practicable and, if requested by any such Person, confirm such notice in writing:

(i) (A) when a prospectus, any prospectus supplement or free writing prospectus or post-effective amendment is proposed to be filed in respect of a registration statement filed pursuant to this Agreement, and (B) with respect to such registration statement or any post-effective amendment thereto, when the same has become effective;

(ii) of any written comments from the SEC with respect to any filing and of any request by the SEC or any other federal or state governmental authority for amendments or supplements to such registration statement or related prospectus or for additional information related thereto;

(iii) of the issuance by the SEC, any state securities commission, any other governmental agency or any court of any stop order, order or injunction suspending or enjoining the use or effectiveness of any registration statement filed pursuant to this Agreement or the initiation of any proceedings for that purpose;

(iv) of the receipt by the Company of any notification with respect to the suspension of qualification or exemption from qualification of any of the Eligible Securities for sale in any jurisdiction, or the initiation or threatening of any proceeding for such purpose;

(v) of the existence of any fact or the happening of any event that makes any statement of material fact made in any registration statement filed pursuant to this Agreement or related prospectus untrue in any material respect, or that requires the making of any changes in such registration statement or prospectus so that, in the case of the registration statement, it will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading and

 

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that, in the case of the prospectus, such prospectus will not contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and

(vi) of the determination by the Company that a post-effective amendment to a registration statement filed pursuant to this Agreement will be filed with the SEC; and

(g) (i) upon the occurrence of any event contemplated by Sections 4.1(f)(ii) , (iii)  or (iv) , use its reasonable best efforts to respond to such comments, prepare such amendment or supplement, furnish such additional information, or obtain the withdrawal of such stop order, order, injunction or suspension of qualification or exemption, as applicable, as promptly as practicable, and (ii) upon the occurrence of any event contemplated by Section 4.1(f)(v) , at the request of the Investor or a Selling Investor, prepare and furnish to the Investor and any of the Selling Investors as many copies as requested of a supplement or amendment, including, if appropriate, a post-effective amendment to the registration statement or a supplement to the related prospectus or any document incorporated or deemed to be incorporated therein by reference, and file any other required document so that, as thereafter delivered, such prospectus will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading.

The Company may require the Investor(s) and any of the Selling Investors to furnish the Company such information regarding the Investor(s) and any of the Selling Investors and the distribution of such securities as the Company may from time to time reasonably request in writing and as shall be required by law or by the SEC in connection with any registration.

SECTION 4.2. Underwriting .

(a) If any Selling Investor so elects, an offering under this Agreement shall, by written notice delivered to the Company, be in the form of an underwritten offering. With respect to any such underwritten offering, the Selling Investors shall select an investment banking firm of international standing to be the managing underwriter for the offering, which firm shall be reasonably acceptable to the Company, following which selection the Company and the Selling Investors shall cooperate to effect such transaction as promptly as reasonably practicable.

(b) In the case of an underwritten offering, the Company and the Partnership will enter into and perform their obligations under an underwriting agreement with the underwriters for such offering, such agreement to contain such representations and warranties by the Company and the Partnership and such other terms and provisions as are customarily contained in underwriting agreements with respect to secondary distributions, which may include, without limitation, indemnities and contribution to the effect and to the extent provided in Article VII and the provision of opinions of counsel and accountants’ letters as are customarily delivered by issuers to underwriters in secondary underwritten public offerings of securities. The holders of Eligible Securities on whose behalf such securities are to be

 

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distributed by such underwriters shall be parties to any such underwriting agreement and the representations and warranties by, and the other agreements on the part of, the Company to and for the benefit of such underwriters shall also be made to and for the benefit of such holders of such securities, but only to the extent such representations and warranties and other agreements are customarily made by issuers to selling stockholders in secondary underwritten public offerings, and the holders of Eligible Securities included in such underwritten registration shall be required to make representations or warranties to, and other agreements with, the Company and the underwriters in connection with such underwriting agreement as are customarily made by selling stockholders in secondary underwritten public offerings; provided , however , that no holder of Eligible Securities included in any underwritten registration shall be required to make any representations or warranties to the Company or the underwriters regarding such holder’s knowledge about the Company or to undertake any indemnification obligations to the Company with respect thereto, except as otherwise provided in Section 7.1(b) , or to the underwriters with respect thereto, except to the extent of the indemnification being given to the Company and its controlling Persons in Section 7.1(b) .

(c) In the event that any registration pursuant to Articles II or III shall involve, in whole or in part, an underwritten offering, the Company will, if requested by the Investors or the underwriters in such offering, cause the appropriate officers of the Company and/or the Partnership to attend and participate in “road shows” and other information meetings, if any, organized by the underwriters, as reasonably requested; provided , that the Company shall have no obligation to participate in more than two (2) “road shows” in any twelve (12) consecutive month period, and such participation shall not unreasonably interfere with the business operations of the Company.

SECTION 4.3. Blackout Periods .

(a) (i) At any time when a registration statement effected pursuant to Articles II or III relating to Eligible Securities is effective, upon written notice from the Company to the Selling Investors that the Board of Directors of the Company has determined in good faith, with the advice of counsel, that the Selling Investors’ sale of Eligible Securities pursuant to the registration statement would be reasonably likely to require disclosure of non-public material information the disclosure of which would not otherwise be required to be disclosed and would be reasonably likely to have a material adverse effect on the Company (an “ Information Blackout ”), the Selling Investors shall suspend sales of Eligible Securities pursuant to such registration statement and (ii) if, while a registration request is pending pursuant to Articles II or III , the Board of Directors of the Company determines that an Information Blackout is required, or that any such filing or the offering of any Eligible Securities would be reasonably likely to materially adversely affect or materially delay any proposed material financing, offer or sale of securities, acquisition, corporate reorganization or other material transaction involving the Company or the Partnership, the Company shall deliver to the Investors a certificate to such effect signed by its Chief Executive Officer or Chief Financial Officer, and the Company shall not be required to file a registration statement, prospectus or any amendment or any supplement thereto pursuant to Articles II or III (a “ Registration Delay ”); provided , that any such suspension or postponement under (i) and (ii) of this Section 4.3(a) shall only continue until the earliest of:

 

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(1) the date upon which such material information is disclosed to the public or ceases to be material;

(2) sixty (60) days after the Company’s delivery of such written notice to the Selling Investors;

(3) in the case of clause (i) above, such time as the Company notifies the Selling Investors that sales pursuant to such registration statement may be resumed; and

(4) in the case of clause (ii) above, the date upon which the financing, offer or sale of securities, acquisition, corporate reorganization or other material transaction referred to therein concludes.

The number of days from such suspension of sales by the Selling Investors until the day when such sales may be resumed under clause (1), (2) or (3) hereof, or from the date of a notice of a Registration Delay until the date such affected registration process resumes under clause (1), (2) or (4) hereof, shall be called a “ Blackout Period . In no event may the Company deliver more than two (2) notices, collectively, of an Information Blackout and/or a Registration Delay in any twelve (12) consecutive month period, and the aggregate number of days in which any Blackout Periods may be in effect in any twelve (12) consecutive month period shall not exceed ninety (90) days.

(b) Any delivery by the Company of a written notice of a Registration Delay following a registration request by a Requesting Investor pursuant to Section 2.1 or by an Investor pursuant to Section 3.2 , and before the effectiveness of the related registration statement, or of a written notice of an Information Blackout during the sixty (60) days immediately following effectiveness of any registration statement effected pursuant to Article II , shall give the Investors the right, by written notice to the Company within twenty (20) Business Days after the end of such Blackout Period, to cancel such registration and obtain one additional registration right during such calendar year under Article II .

(b) The Company shall not effect any public offering of its securities during any Blackout Period other than in connection with such proposed transaction described in Section 4.3(a) ; provided , that the Investors shall have incidental registration rights with respect to such primary offering of securities by the Company in accordance with, and subject to the restrictions set forth in, Section 3.1 .

SECTION 4.4. Qualification for Rule 144 Sales . The Company covenants that it will use its reasonable best efforts to file the reports required to be filed by it under the Securities Act and the Exchange Act and the rules and regulations adopted by the SEC thereunder (or, if the Company is not required to file such reports, it will, upon the written request of an Investor, use its reasonable best efforts to make publicly available such necessary information for so long as necessary to permit sales pursuant to Rule 144 under the Securities Act), and it will use its reasonable best efforts to take any such further action as reasonably requested by any Investor, all to the extent required from time to time to enable Investors to sell Eligible Securities without registration under the Securities Act within the limitation of the exemptions provided by (a) Rule

 

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144, Rule 144A or Regulation S under the Securities Act, as each may be amended from time to time, or (b) any similar rule or regulation hereafter adopted by the SEC. Upon the reasonable request of any Investor, the Company will deliver to such Investor a written statement as to whether it has complied with such requirements and, if not, the specifics thereof.

ARTICLE V

PREPARATION; REASONABLE INVESTIGATION

SECTION 5.1. Preparation; Reasonable Investigation . In connection with the preparation and filing of each registration statement registering or offering Eligible Securities under the Securities Act, the Company will give the Investors, any of the Selling Investors and the underwriters, if any, and their respective counsel and accountants, drafts of such registration statement for their review and comment prior to filing and such reasonable and customary access to its books and records and such opportunities to discuss the business of the Company with its officers, counsel and the independent public accountants who have certified its financial statements as shall be necessary to conduct a reasonable investigation within the meaning of the Securities Act; provided , that the Company may require them to enter into a customary confidentiality agreement.

ARTICLE VI

RESTRICTIONS ON PUBLIC SALE

SECTION 6.1. Restrictions on Public Sale .

(a) Notwithstanding any registration rights set forth in this Agreement, upon written notice by the Company to the Investors, the Investors shall, in the event (x) the Company is issuing equity securities with an aggregate fair market value of at least $50,000,000 to the public, or (y) any Qualifying Other Holder is proposing to sell REIT Class A Shares with an aggregate fair market value of at least $50,000,000, in each case in an underwritten offering, and, if requested in writing by the managing underwriter or underwriters for such underwritten offering, not effect (and sign a written commitment to the underwriter(s) (a “ Lock-up Commitment ”) to not effect) any public sale or distribution of Eligible Securities or any securities convertible into or exchangeable or exercisable for such Eligible Securities, including a sale pursuant to Rule 144 (or any similar provision then in force) under the Securities Act, for a period commencing on the seventh (7 th ) day prior to the date such underwritten offering commences (such offering being deemed to commence for this purpose on the later of the effective date for the registration statement for such offering or, if applicable, the date of the prospectus supplement for such offering) or, if later, the date of such written request of the underwriter(s), and ending on such date, not to exceed ninety (90) days after the closing of such underwritten offering, as may be requested by the managing underwriter(s), so long as (i) the managing underwriter or underwriters obtains a written commitment of each Company director and executive officer and, in connection with a registration under clause (y) above, the Qualifying Other Holder, to agree to the same restrictions and (ii) the Investors are afforded piggyback and incidental registration rights, as applicable, with respect to such offerings of securities in accordance with, and subject to the restrictions set forth in, Section 2.2 and Section 3.1 , respectively; provided , however , that such Lock-up Commitment shall not prohibit (i) any distributions-in-kind to an Investor’s partners, members or stockholders or (ii) a transfer to an

 

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Investor’s Affiliates, provided that any transferee in the case of this clause (ii) agrees to be bound by the restrictions set forth in this Section 6.1(a) , and in the case of clauses (i) and (ii), such transfers are not required to be reported with the SEC on Form 4 in accordance with Section 16 of the Exchange Act. Any notice delivered to the Investors pursuant to this Section 6.1(a) (an “ Underwritten Offering Notice ”) shall be delivered not less than five (5) Business Days prior to the date of the underwriting agreement for such offering. The Company shall not deliver more than two (2) Underwritten Offering Notices pursuant to this Section 6.1(a) in any twelve (12) consecutive month period.

(b) In the event of a sale of REIT Class A Shares by the Investors in an underwritten offering pursuant to Section 4.2 , if requested in writing by the managing underwriter or underwriters for such underwritten offering, the Company will, and shall use reasonable best efforts to cause its directors, executive officers and any other Qualifying Other Holder to, sign a Lock-Up Commitment to the underwriter(s) to not effect any public sale or distribution of REIT Class A Shares or any securities convertible into or exchangeable or exercisable for REIT Class A Shares, including a sale pursuant to Rule 144 (or any similar provision then in force) under the Securities Act, for a period commencing on the seventh (7 th ) day prior to the date such underwritten offering commences (such offering being deemed to commence for this purpose on the later of the effective date for the registration statement for such offering or, if applicable, the date of the prospectus supplement for such offering) or, if later, the date of such written request of the underwriter(s), and ending no later than the earlier of (i) ninety (90) days after the closing of such underwritten offering and (ii) the date of the expiration of the lock-up imposed on the Investors in respect of such offering. Notwithstanding anything to the contrary in this Section 6.1 , (x) if the Investors fail to sign a Lock-Up Commitment in accordance with, and subject to the terms and limitations set forth in, Section 6.1(a)(x) , then the Company’s obligations under this Section 6.1(b) shall terminate, (y) if the Company fails to sign a Lock-Up Commitment in accordance with, and subject to the terms and limitations set forth in, this Section 6.1(b) , then the Investors’ obligations under Section 6.1(a)(x) shall terminate and (z) if a Qualifying Other Holder fails to sign a Lock-Up Commitment in accordance with, and subject to the terms and limitations set forth in, this Section 6.1(b) , then the Investors’ obligations under Section 6.1(a)(y) shall terminate with respect to such Qualifying Other Holder.

(c) Notwithstanding the foregoing, the Company shall not, and shall not be required to, use reasonable best efforts to impose restrictions on sales and distributions of Eligible Securities by the Investors for more than one hundred (100) days in the aggregate in any twelve (12) consecutive month period.

ARTICLE VII

INDEMNIFICATION AND CONTRIBUTION

SECTION 7.1. Indemnification .

(a) In the event of any registration of Eligible Securities hereunder, the Company will, and hereby does, indemnify and hold harmless, each Selling Investor, its respective directors, trustees, officers, partners, agents, and employees and each other Person who participates as an underwriter in the offering or sale of such securities and each other

 

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Person, if any, who controls each such Selling Investor or any such underwriter within the meaning of the Securities Act, against any and all losses, claims, damages, expenses or liabilities, joint or several, actions or proceedings (whether commenced or threatened) in respect thereof, to which each such indemnified party may become subject under the Securities Act or otherwise, insofar as such losses, claims, damages, expenses or liabilities (or actions or proceedings, whether commenced or threatened, in respect thereof) arise out of or are based upon any untrue statement or alleged untrue statement of any material fact contained in any registration statement contemplated hereby under which Eligible Securities were registered under the Securities Act, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, or any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement to the foregoing, in light of the circumstances in which they were made) not misleading, and the Company will reimburse each such Selling Investor and each such director, trustee, officer, partner, agent, or employee, underwriter and controlling Person for any legal or any other expenses reasonably incurred by them in connection with investigating or defending any such loss, claim, damage, expense, liability, action, or proceeding; provided , however , that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, expense or liability (or action or proceeding in respect thereof) arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in such registration statement, any such preliminary prospectus, final prospectus, summary prospectus, amendment or supplement in reliance upon and in conformity with written information furnished to the Company by or on behalf of such Selling Investor or underwriter specifically for inclusion in such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement.

(b) Each Selling Investor, severally and not jointly, will, and hereby does, indemnify and hold harmless the Company, its directors, officers, employees, agents and each Person who participates as an underwriter in the offering or sale of such securities, and each Person, if any, who controls the Company within the meaning of the Securities Act against any and all losses, claims, damages, expenses or liabilities, joint or several, actions or proceedings (whether commenced or threatened) in respect thereof, to which each such indemnified party may become subject under the Securities Act or otherwise insofar as such losses, claims, damages, expenses or liabilities (or actions or proceedings, whether commenced or threatened in respect thereof) arise out of or are based upon an untrue statement or alleged untrue statement of a material fact in or omission or alleged omission to state a material fact in such registration statement, any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement thereto, required to be stated therein or necessary to make the statements therein (in the case of any preliminary prospectus, final prospectus or summary prospectus contained therein, or any amendment or supplement to the foregoing, in light of the circumstances in which they were made) not misleading, but only to the extent that such statement or omission was made in reliance upon and, in conformity with, written information furnished by or on behalf of such Selling Investor to the Company specifically for inclusion in such registration statement, preliminary prospectus, final prospectus, summary prospectus, amendment or supplement. In no event shall the liability of any Selling Investor hereunder be greater in amount than the dollar amount of the net proceeds received by such

 

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Selling Investor upon the sale of the Eligible Securities giving rise to such indemnification obligation.

(c) Promptly after receipt by any indemnified party hereunder of notice of the commencement of any action or proceeding involving a claim referred to in Section 7.1(a) or (b) , the indemnified party will notify the indemnifying party in writing of the commencement thereof; but the omission so to notify the indemnifying party will not relieve the indemnifying party from any liability which it may have to any indemnified party under Section 7.1(a) or (b)  (except to the extent that is has been prejudiced in any material respect by such failure). In case any such action, suit, claim or proceeding is brought against any indemnified party, the indemnifying party shall be entitled to participate therein and, to the extent it may elect by written notice delivered to the indemnified party promptly after receiving the aforesaid notice from such indemnified party, to assume the defense thereof with counsel reasonably satisfactory to such indemnified party. Notwithstanding the foregoing, the indemnified party shall have the right to employ its own counsel in any such case, but the fees and expenses of such counsel shall be at the expense of such indemnified party unless (i) the employment of such counsel shall have been authorized in writing by the indemnifying party in connection with the defense of such suit, action, claim or proceeding, (ii) the indemnifying party shall not have employed counsel to take charge of the defense of such action, suit, claim or proceeding within a reasonable time after notice of commencement of the action, suit, claim or proceeding, or (iii) such indemnified party shall have reasonably concluded, based on the advice of counsel, that there may be defenses available to it which are different from or additional to those available to the indemnifying party which, if the indemnifying party and the indemnified party were to be represented by the same counsel, could result in a conflict of interest for such counsel or materially prejudice the prosecution of the defenses available to such indemnified party. If any of the events specified in clauses (i), (ii) or (iii) of the preceding sentence shall have occurred or shall otherwise be applicable, then the reasonable fees and expenses of one counsel selected by a majority in interest of the indemnified parties (and up to one local counsel to the extent reasonably necessary) shall be borne by the indemnifying party. If, in any case specified in the foregoing clauses (i), (ii) or (iii), the indemnified party employs separate counsel, the indemnifying party shall not have the right to direct the defense of such action, suit, claim or proceeding on behalf of the indemnified party. Anything in this Section 7.1(c) to the contrary notwithstanding, an indemnifying party shall not be liable for the settlement of any action, suit, claim or proceeding effected without its prior written consent (which consent in the case of an action, suit, claim or proceeding exclusively seeking monetary relief shall not be unreasonably withheld or delayed). Such indemnification shall remain in full force and effect irrespective of any investigation made by or on behalf of an indemnified party.

(d) If for any reason the indemnity under this Section 7.1 is unavailable or is insufficient to hold harmless any indemnified party under Section 7.1(a) or (b) , then the indemnifying parties shall contribute to the amount paid or payable to the indemnified party as a result of any loss, claim, expense, damage or liability (or actions or proceedings, whether commenced or threatened, in respect thereof), and legal or other expenses reasonably incurred by the indemnified party in connection with investigating or defending any such loss, claim, expense, damage, liability, action or proceeding, in such proportion as is appropriate to reflect the relative fault of the indemnifying party on the one hand and the indemnified party on the other. The relative fault shall be determined by reference to, among other things, whether the

 

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untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the Selling Investor and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. If, however, the allocation provided in the second preceding sentence is not permitted by applicable law or provides a lesser sum to the indemnified party than the amount hereinbefore calculated, then the indemnifying party shall contribute to the amount paid or payable by the indemnified party in such proportion as is appropriate to reflect not only such relative fault of, but also the relative benefits received by, the indemnifying party and the indemnified party as well as any other relevant equitable considerations. The parties hereto agree that it would not be just and equitable if contributions pursuant to this Section 7.1(d) were to be determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the preceding sentences of this Section 7.1(d) . Notwithstanding the foregoing, no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to contribution from any Person who was not guilty of such fraudulent misrepresentation.

(e) Notwithstanding any other provision of this Section 7.1 , to the extent that any director, trustee, officer, partner, agent, employee, or other representative (current or former) of any indemnified party is a witness in any action or proceeding, the indemnifying party agrees to pay to the indemnified party all expenses reasonably incurred by, or on the behalf of, the indemnified party and such witness in connection therewith.

(f) All legal and other expenses reasonably incurred by or on behalf of any indemnified party in connection with investigating or defending any loss, claim, expense, damage, liability, action or proceeding which are to be borne by the indemnifying party pursuant to this Section 7.1 shall be paid by the indemnifying party in advance of the final disposition of such investigation, defense, action or proceeding within thirty (30) days after the receipt by the indemnifying party of a statement or statements from the indemnified party requesting from time to time such payment, advance or advances. The entitlement of each indemnified party to such payment or advancement of expenses shall include those incurred in connection with any action or proceeding by the indemnified party seeking an adjudication or award in arbitration pursuant to this Section 7.1 . Such statement or statements shall reasonably evidence such expenses incurred by the indemnified party in connection therewith.

(g) The termination of any proceeding by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, adversely affect the rights of any indemnified party to indemnification hereunder or create a presumption that any indemnified party violated any federal or state securities laws.

(h) The indemnity agreements contained in this Section 7.1 shall be in addition to any other rights (to indemnification, contribution or otherwise) which any indemnified party may have pursuant to law or contract and shall remain operative and in full force and effect regardless of any investigation made or omitted by or on behalf of any indemnified party and shall survive the transfer of any Eligible Securities by any Investor.

ARTICLE VIII

BENEFITS OF REGISTRATION RIGHTS

 

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SECTION 8.1. Benefits of Registration Rights . The Investors may severally or jointly exercise the registration rights hereunder in such proportion as they shall agree among themselves. In the event that the Company receives conflicting direction from Investors with respect to actions to be taken hereunder, the direction of MGM shall be the only direction the Company shall be required to follow.

ARTICLE IX

MISCELLANEOUS

SECTION 9.1. No Inconsistent Agreements . Neither the Company nor the Partnership has entered and neither of them will enter into any agreement that is inconsistent with the rights granted to the Investors in this Agreement or that otherwise conflicts with the provisions hereof in any material respect. The rights granted to the Investors hereunder do not in any material way conflict with and are not inconsistent with the rights granted to the holders of the Company’s or the Partnership’s other issued and outstanding securities under any such agreements.

SECTION 9.2. Captions . The captions or headings in this Agreement are for convenience and reference only, and in no way define, describe, extend or limit the scope or intent of this Agreement.

SECTION 9.3. Severability . If any clause, provision or section of this Agreement shall be invalid or unenforceable, the invalidity or unenforceability of such clause, provision or section shall not affect the enforceability or validity of any of the remaining clauses, provisions or sections hereof to the extent permitted by applicable law.

SECTION 9.4. Modification and Amendment . This Agreement may not be changed, modified, discharged or amended, except by an instrument signed by all of the parties hereto.

SECTION 9.5. Counterparts . This Agreement may be executed in counterparts, each of which shall be an original, but all of which together shall constitute one and the same instrument.

SECTION 9.6. Entire Agreement . This Agreement constitutes the entire agreement and understanding among the parties and supersedes any prior understandings and/or written or oral agreements among them respecting the subject matter herein.

SECTION 9.7. Assignment; Successors and Assigns . Except as set forth in the next sentence, this Agreement and the rights granted hereunder may not be assigned by any Investor without the prior written consent of the Company, which may be granted or withheld by the Company in its sole and absolute discretion. Each Investor will be permitted to assign its rights under this Agreement to its Permitted Transferees, so long as the applicable transferee executes and delivers to the Company an instrument, in form and substance acceptable to the Company, agreeing to be bound by the terms of this Agreement as if it were an original party hereto. This Agreement shall inure to the benefit of and be binding upon all of the parties hereto and their respective successors and permitted assigns.

 

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SECTION 9.8. Notices . All notices required or permitted hereunder shall be in writing and shall be deemed effectively given: (a) upon personal delivery to the party to be notified, (b) five (5) days after having been sent by registered or certified mail, return receipt requested, postage prepaid, or (c) one (1) Business Day after deposit with a nationally recognized overnight courier, specifying next Business Day delivery, with written verification of receipt. All notices and other communications shall be sent to the Company or the Investors, respectively, at the address listed on the signature page hereof or at such other address as the Company or the Investors, respectively, may designate by ten (10) days’ advance written notice to the other parties hereto.

SECTION 9.9. Specific Performance . The parties agree that, to the extent permitted by law, (a) the obligations imposed on them pursuant to this Agreement are special, unique and of an extraordinary character, and that in the event of a breach by any such party, damages would not be an adequate remedy; and (b) each of the other parties shall be entitled to specific performance and injunctive and other equitable relief in addition to any other remedy to which it may be entitled at law or in equity.

SECTION 9.10. Dispute Resolution . The provisions of Article VIII of the Contribution Agreement shall apply, mutatis mutandis , to all disputes, controversies or claims (whether arising in contract, tort or otherwise) that may arise out of or relate to, or arise under or in connection with this Agreement or the transactions contemplated hereby.

SECTION 9.11. Governing Law; Jurisdiction . This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York irrespective of the choice of laws principles thereof. In addition, other than disputes, controversies or claims (whether arising in contract, tort or otherwise) governed by the mediation and/or arbitration procedures set forth in Article VIII of the Contribution Agreement, the parties agree that any legal action or proceeding regarding this Agreement shall be brought and determined exclusively in a state or federal court located within the State of New York.

[ Signature pages follow ]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Agreement or caused this Agreement to be executed as of the day and year first above written.

 

THE COMPANY:
MGM GROWTH PROPERTIES LLC
By:  

/s/ Andy H. Chien

Name:   Andy H. Chien
Title:   Chief Financial Officer
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119

 

[ Signature Page to Registration Rights Agreement ]

THE HOLDERS:

MGM GRAND DETROIT, LLC ,

a Delaware limited liability company

By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119

MANDALAY CORP. ,

a Nevada corporation

By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119

RAMPARTS, INC. ,

a Nevada corporation

By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119

NEW CASTLE CORP. ,

a Nevada corporation

By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119

MGM RESORTS MISSISSIPPI, INC. ,

a Mississippi corporation

By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
875 Beach Boulevard
Biloxi, MS 39530

 

[ Signature Page to Registration Rights Agreement ]

VICTORIA PARTNERS ,
a Nevada partnership

By: MGM Resorts International,

a Delaware corporation

Its: Managing Venturer
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Executive Vice President, General Counsel and Secretary
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119

PARK DISTRICT HOLDINGS, LLC ,

a Nevada limited liability company

By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119

NEW YORK-NEW YORK HOTEL & CASINO , LLC ,

a Nevada limited liability company

By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119

THE MIRAGE CASINO-HOTEL, LLC ,

a Nevada limited liability company

By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Authorized Representative
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119

BEAU RIVAGE RESORTS, LLC ,

a Mississippi limited liability company

By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Authorized Representative
875 Beach Boulevard
Biloxi, MS 39530

 

[ Signature Page to Registration Rights Agreement ]

THE PARTNERSHIP:
MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP
By: MGM Growth Properties OP GP LLC, its general partner
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
3950 Las Vegas Boulevard South
Las Vegas, Nevada 89119

 

[ Signature Page to Registration Rights Agreement ]

Exhibit 10.4

INTELLECTUAL PROPERTY LICENSE AGREEMENT

This INTELLECTUAL PROPERTY LICENSE AGREEMENT (this “ Agreement ”), dated as of April 25, 2016 (the “ Effective Date ”), is between MGM Resorts International, a Delaware corporation (“ Licensor ”) and MGM Growth Properties LLC, a Delaware limited liability company (“ Licensee ”).

Recitals

WHEREAS, Licensor is the owner of the MGM trademark, in plain type and in various formats with and without designs, which are registered on the Principal Register of the United States Patent and Trademark Office for a variety of goods and services (the “ Licensed Mark ”); and

WHEREAS, Licensor wishes to license to Licensee, and Licensee wishes to obtain from Licensor, a license to use the Licensed Mark in connection with the name of Licensee and its Subsidiaries (as defined below) and uses incidental to the management and operation of Licensee and its Subsidiaries (the “ Licensed Services ”).

Agreement

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto agree as follows:

1. License . Subject to the other terms and conditions of this Agreement, Licensor grants to Licensee the non-exclusive, royalty-free right to: (a) use the Licensed Mark in association with the Licensed Services; and (b) sublicense use of the Licensed Mark to Subsidiaries (as defined in the Contribution Agreement), whether now existing or formed during the Term (as defined below) for use in connection with the Licensed Services for as long as Licensee owns at least a majority interest in the Subsidiary. In the event that Licensee grants any sublicense to any of its Subsidiaries as permitted herein, Licensee shall ensure that the Subsidiaries consent to the terms of this Agreement and Licensee shall be responsible for its Subsidiaries’ compliance with the terms of this License. All rights not otherwise licensed to Licensee hereunder are specifically reserved and owned by Licensor, including, without limitation, use of the Licensed Mark in connection with casino, hotel, and entertainment services, and other related goods and services offered by Licensor or its subsidiaries and affiliates that own or operate resort hotels and casinos. Nothing herein shall preclude Licensee or its Subsidiaries from using trademarks owned by Licensor in a nominative manner to the extent necessary to identify or refer to Licensor, as permitted by law and provided that such use does not create a likelihood of confusion.

2. Term and Termination . The term of this Agreement shall commence on the Effective Date and continue for fifty (50) years (“ Term ”). Licensor may terminate this Agreement during the Term upon thirty (30) days’ written notice to Licensee if Licensee or any of its Subsidiaries materially breach this Agreement and fail to cure such breach within thirty (30) days after receipt of written notice of such breach. Licensee may terminate this Agreement for any reason upon thirty (30) days’ written notice to Licensor. Upon termination of this Agreement, all rights and licenses granted to Licensee pursuant to this Agreement shall immediately and automatically revert to Licensor, Licensee and its Subsidiaries shall no longer be entitled to use the Licensed Mark in any form in any media now known or hereafter invented, and Licensee and its Subsidiaries shall cease holding themselves out as being licensed by Licensor; provided , however , that Licensee and its Subsidiaries shall have thirty (30) days after the effective date of termination to phase out all uses of the Licensed Mark.

3. Quality Control .

a. Acknowledgement . Licensee for itself and its Subsidiaries acknowledges and is familiar with the high standard of quality of the goods and services offered by Licensor. Licensee and its Subsidiaries shall, at all times, use the Licensed Mark in a manner consistent with this standard of quality and in compliance with any brand guidelines or style guide provided by Licensor from time to time during the Term. Licensee and its Subsidiaries shall include any trademark designations, including, but not limited to, the ® symbol, reasonably required by Licensor in connection with use of the Licensed Mark.

b. Director Approvals . Licensor or its designee, including, without limitation, the Director of Intellectual Property (“ Director ”) of Licensor, shall have the right to audit use of the Licensed Mark by Licensee and its Subsidiaries, including, without limitation, through a periodic onsite audit not to exceed one time every two (2) years during the Term, and examination of samples of their use of the Licensed Mark at any time during the Term, which samples Licensee and its Subsidiaries must provide upon request. If Licensor or its Director provides written notice to Licensee that Licensee or its Subsidiaries have not complied with the standard of quality required herein, Licensee and its Subsidiaries shall take remedial steps necessary to ensure that their use is brought into compliance.

4. Representations, Warranties and Covenants .

a. Licensee for itself and its Subsidiaries acknowledges that Licensor is the exclusive owner of the Licensed Mark and of the goodwill symbolized thereby, and agree that their use of the Licensed Mark inures exclusively to the benefit of, and is owned by, Licensor and to take all actions and execute all documents necessary to protect or support Licensor’s ownership of the Licensed Mark.

b. Licensor shall have the right, but not the obligation, to seek protection of the Licensed Mark in its sole and absolute discretion. Licensee for itself and its Subsidiaries agrees to promptly notify Licensor of any third-party claims, infringements, oppositions, cancellations or actions asserted by others relating to the Licensed Mark of which Licensee or its Subsidiaries become aware during the Term.

c. Licensee for itself and its Subsidiaries agrees that, during the Term and thereafter, they will not contest Licensor’s right in and to the Licensed Mark or contest the validity of this Agreement. Licensee for itself and its Subsidiaries further agrees not to adopt, use or apply to register any mark, trade name, corporate name or domain name containing the Licensed Mark or a confusingly similar mark or design, unless consistent with the scope of the Licensed Services or permitted in writing by Licensor. In the event that Licensee or any of its Subsidiaries breach this provision, Licensee hereby grants Licensor an irrevocable limited power of attorney to correct the records and have the application or registration placed in Licensor’s name.

5. Miscellaneous .

a. Assignment . Except as expressly provided herein, neither Licensee nor any of its Subsidiaries shall assign or transfer this Agreement or any of their rights or obligations hereunder without Licensor’s prior written consent. Any purported assignment or transfer by Licensee or its Subsidiaries in contravention of this Agreement shall be null and void. This Agreement shall be binding upon and inure to the benefit of the parties and their respective permitted assigns and successors (whether through merger, operation of law or otherwise).

b. Dispute Resolution . The provisions of Article VIII of that certain Master Contribution Agreement, dated as of the date hereof, by and among Licensor, Licensee and MGM Growth Properties Operating Partnership LP (the “ Contribution Agreement ”) shall apply, mutatis mutandis , to all disputes, controversies or claims (whether arising in contract, tort or otherwise) that may arise out of or relate to, or arise under or in connection with, this Agreement or the transactions contemplated hereby.

 

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c. Governing Law; Jurisdiction . This Agreement shall be governed by and construed and interpreted in accordance with the laws of the State of New York irrespective of the choice of laws principles thereof. In addition, other than disputes, controversies or claims (whether arising in contract, tort or otherwise) governed by the mediation and/or arbitration procedures set forth in Article VIII of the Contribution Agreement, the parties agree that any legal action or proceeding regarding this Agreement shall be brought and determined exclusively in a state or federal court located within the State of New York.

d. Entire Agreement . This Agreement, and any other records incorporated herein by reference, constitutes the sole and entire agreement of the parties to this Agreement with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings and agreements, both written and oral, with respect to such subject matter.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Effective Date.

 

LICENSOR:     LICENSEE:
MGM RESORTS INTERNATIONAL     MGM GROWTH PROPERTIES LLC
By:  

/s/ John M. McManus

    By:  

/s/ Andy H. Chien

Name:   John M. McManus     Name:   Andy H. Chien
Its:   Executive Vice President, General Counsel and Secretary     Its:   Chief Financial Officer

 

 

[INTELLECTUAL PROPERTY LICENSE AGREEMENT]

Exhibit 10.5

 

 

AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP

OF

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP

 

 

Dated as of April 25, 2016

THE PARTNERSHIP INTERESTS ISSUED PURSUANT TO THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR UNDER THE SECURITIES OR “BLUE SKY” LAWS OF ANY STATE OR OTHER JURISDICTION, AND MAY NOT BE SOLD OR TRANSFERRED UNLESS THEY ARE REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY OTHER APPLICABLE SECURITIES OR “BLUE SKY” LAWS, OR UNLESS AN EXEMPTION FROM SUCH REGISTRATION IS AVAILABLE. SUCH PARTNERSHIP INTERESTS ARE SUBJECT TO THE RESTRICTIONS ON TRANSFER SET FORTH IN THIS AGREEMENT.

TABLE OF CONTENTS

 

         Page  

ARTICLE 1

 

DEFINED TERMS

     1   
 

Section 1.1

 

Definitions

     1   

ARTICLE 2

 

ORGANIZATIONAL MATTERS

     14   
 

Section 2.1

 

Organization

     14   
 

Section 2.2

 

Name

     14   
 

Section 2.3

 

Resident Agent; Principal Office

     14   
 

Section 2.4

 

Power of Attorney

     14   
 

Section 2.5

 

Term

     16   
 

Section 2.6

 

Number of Partners

     16   
 

Section 2.7

 

Partnership Interests are Securities

     16   

ARTICLE 3

 

PURPOSE

     16   
 

Section 3.1

 

Purpose and Business

     16   
 

Section 3.2

 

Powers

     17   
 

Section 3.3

 

Partnership Only for Purposes Specified

     17   
 

Section 3.4

 

Representations and Warranties by the Parties

     17   

ARTICLE 4

 

CAPITAL CONTRIBUTIONS

     19   
 

Section 4.1

 

Capital Contributions of the Partners

     19   
 

Section 4.2

 

Loans by Third Parties

     20   
 

Section 4.3

 

Additional Funding and Capital Contributions

     20   
 

Section 4.4

 

Stock Plans and Equity Plans

     22   
 

Section 4.5

 

Other Contribution Provisions

     25   
 

Section 4.6

 

Capital Accounts

     25   
 

Section 4.7

 

No Preemptive Rights

     26   

ARTICLE 5

 

DISTRIBUTIONS

     26   
 

Section 5.1

 

Requirement and Characterization of Distributions

     26   
 

Section 5.2

 

Distributions in Kind

     26   
 

Section 5.3

 

Distributions upon Liquidation

     27   

ARTICLE 6

 

ALLOCATIONS

     27   
 

Section 6.1

 

Timing and Amount of Allocations of Net Income and Net Loss

     27   
 

Section 6.2

 

General Allocations

     27   
 

Section 6.3

 

Regulatory Allocations

     27   
 

Section 6.4

 

Tax Allocations

     29   

ARTICLE 7

 

MANAGEMENT AND OPERATIONS OF BUSINESS

     30   
 

Section 7.1

 

Management

     30   
 

Section 7.2

 

Certificate of Limited Partnership

     33   
 

Section 7.3

 

Restrictions on General Partner’s Authority

     33   
 

Section 7.4

 

Reimbursement of the General Partner and MGP

     35   
 

Section 7.5

 

Outside Activities of the General Partner

     36   
 

Section 7.6

 

Contracts with Affiliates

     36   

 

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TABLE OF CONTENTS (continued)

 

         Page  
 

Section 7.7

 

Indemnification

     37   
 

Section 7.8

 

Liability of Indemnitees

     39   
 

Section 7.9

 

Modification of Duties

     40   
 

Section 7.10

 

Other Matters Concerning the General Partner

     40   
 

Section 7.11

 

Title to Partnership Assets

     41   
 

Section 7.12

 

Reliance by Third Parties

     41   

ARTICLE 8

 

RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS

     42   
 

Section 8.1

 

Limitation of Liability

     42   
 

Section 8.2

 

Management of Business

     42   
 

Section 8.3

 

Outside Activities of Unrestricted Persons

     42   
 

Section 8.4

 

Return of Capital

     43   
 

Section 8.5

 

Rights of Limited Partners Relating to the Partnership

     43   
 

Section 8.6

 

Redemption Rights

     44   

ARTICLE 9

 

BOOKS, RECORDS, ACCOUNTING AND REPORTS

     49   
 

Section 9.1

 

Records and Accounting

     49   
 

Section 9.2

 

Fiscal Year

     49   
 

Section 9.3

 

Reports

     49   

ARTICLE 10

 

TAX MATTERS

     49   
 

Section 10.1

 

Preparation of Tax Returns

     49   
 

Section 10.2

 

Tax Matters Representative

     50   
 

Section 10.3

 

Withholding

     50   
 

Section 10.4

 

State and Local Tax Sharing

     51   

ARTICLE 11

 

TRANSFERS AND WITHDRAWALS

     52   
 

Section 11.1

 

Transfer

     52   
 

Section 11.2

 

Substituted Limited Partners

     52   
 

Section 11.3

 

Assignees

     53   
 

Section 11.4

 

General Provisions

     53   
 

Section 11.5

 

REIT Termination Transaction

     54   

ARTICLE 12

 

ADMISSION OF PARTNERS

     55   
 

Section 12.1

 

Admission of Successor General Partner

     55   
 

Section 12.2

 

Admission of Additional Limited Partners

     55   
 

Section 12.3

 

Amendment of Agreement and Certificate of Limited Partnership

     56   

ARTICLE 13

 

DISSOLUTION AND LIQUIDATION

     56   
 

Section 13.1

 

Dissolution

     56   
 

Section 13.2

 

Winding Up

     57   
 

Section 13.3

 

Rights of Limited Partners

     58   
 

Section 13.4

 

Notice of Dissolution

     58   
 

Section 13.5

 

Cancellation of Certificate of Limited Partnership

     58   
 

Section 13.6

 

Reasonable Time for Winding Up

     58   

 

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TABLE OF CONTENTS (continued)

 

         Page  
 

Section 13.7

 

Waiver of Partition

     58   
 

Section 13.8

 

Liability of Liquidator

     58   

ARTICLE 14

 

AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS

     59   
 

Section 14.1

 

Amendments

     59   
 

Section 14.2

 

Action by the Partners

     59   

ARTICLE 15

 

GENERAL PROVISIONS

     60   
 

Section 15.1

 

Addresses and Notice

     60   
 

Section 15.2

 

Titles and Captions

     60   
 

Section 15.3

 

Pronouns and Plurals

     60   
 

Section 15.4

 

Further Action

     60   
 

Section 15.5

 

Binding Effect

     60   
 

Section 15.6

 

Creditors

     60   
 

Section 15.7

 

Waiver

     61   
 

Section 15.8

 

Counterparts

     61   
 

Section 15.9

 

Applicable Law; Waiver of Jury Trial

     61   
 

Section 15.10

 

Invalidity of Provisions

     61   
 

Section 15.11

 

Entire Agreement

     61   
 

Section 15.12

 

No Rights as Shareholders

     62   
 

Section 15.13

 

Sole Discretion

     62   

EXHIBITS

    
 

A Partners, Contributions and Partnership Interests

  
 

B Notice of Redemption

  
 

C Form of Partnership Unit Certificate

  

 

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AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP

OF

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP

THIS AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP, dated as of April 25, 2016, is entered into by and among MGM Growth Properties OP GP LLC, a Delaware limited liability company as the General Partner, MGM Growth Properties LLC, a Delaware limited liability company (“ MGP ”), and the other Persons listed as Limited Partners on Exhibit A attached hereto, together with MGP, as Limited Partners (together with any other Persons who become Partners in the Partnership as provided herein).

WHEREAS, the Partnership was formed as a limited partnership under the laws of the State of Delaware pursuant to the Certificate;

WHEREAS, the original partners of the Partnership entered into that certain Agreement of Limited Partnership of the Partnership, dated as of January 6, 2016 (as amended, modified or otherwise supplemented, the “ Original Agreement ”);

WHEREAS, the Partners, with the consent of the partners of the Partnership existing immediately prior to the date hereof, desire to amend and restate, and do hereby amend and restate, the Original Agreement in its entirety pursuant to the terms of this Agreement;

NOW, THEREFORE, in consideration of the mutual covenants set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged and intending to be legally bound hereby, the parties hereto hereby agree as follows:

ARTICLE 1

DEFINED TERMS

Section 1.1 Definitions .

The following definitions shall be for all purposes, unless otherwise clearly indicated to the contrary, applied to the terms used in this Agreement.

“ Act ” means the Delaware Revised Uniform Limited Partnership Act, as it may be amended, supplemented or restated from time to time, and any successor to such statute.

“ Additional Funds ” shall have the meaning set forth in Section 4.3.A .

“ Additional Limited Partner ” means a Person admitted to the Partnership as a Limited Partner pursuant to Section 12.2 and who is shown as such on the books and records of the Partnership.

“ Adjustment Date ” means, with respect to any Capital Contribution, the close of business on the Business Day last preceding the date of the Capital Contribution, provided , that if such Capital Contribution is being made by MGP in respect of the proceeds from the issuance

of REIT Common Shares (or the issuance of MGP’s securities exercisable for, convertible into or exchangeable for REIT Common Shares), then the Adjustment Date shall be as of the close of business on the Business Day immediately preceding the date of the issuance of such securities.

“ Affiliate ” means, with respect to any Person, any Person directly or indirectly controlling, controlled by or under common control with such Person. For purposes of this definition, “control” when used with respect to any Person, means the power to direct the management and policies of such Person, directly or indirectly, whether through the ownership of voting securities, by contract or otherwise, and the terms “controlling” and “controlled” have meanings correlative to the foregoing.

“ Agreement ” means this Amended and Restated Agreement of Limited Partnership, as it may be further amended or restated from time to time.

“ Appraisal ” means, with respect to any assets, the opinion of an independent third party experienced in the valuation of similar assets, selected by the General Partner in good faith; provided , that such opinion may be in the form of an opinion by such independent third party that the value for such property or asset as set by the General Partner is fair, from a financial point of view, to the Partnership.

“ Assignee ” means a Person to whom one or more Partnership Units have been transferred in a manner permitted under this Agreement, but who has not become a Substituted Limited Partner.

“ Business Day ” means any day except a Saturday, Sunday or other day on which commercial banks in New York, New York are authorized or required by law to be closed.

“ Capital Account ” shall have the meaning set forth in Section 4.6.A .

“ Capital Contribution ” means, with respect to any Partner, the amount of money and the initial Gross Asset Value (net of any Liabilities that the Partnership assumes or takes subject to) of any property (other than money) contributed to the Partnership with respect to the Partnership Units held by such Partner. The names and addresses of the Partners, number of Partnership Units issued to each Partner, and the Capital Contributions as of the date of contribution are set forth on Exhibit A , as it may be amended or restated from time to time.

“ Cash Amount ” means, with respect to any Common Units subject to a Redemption, an amount of cash equal to the Deemed Value of a Partner’s Interest attributable to such Common Units.

“ Certificate ” means that certain Certificate of Limited Partnership of the Partnership filed with the office of the Secretary of State of the State of Delaware on January 6, 2016 (as corrected by that certain Certificate of Correction of Certificate of Limited Partnership filed with the office of the Secretary of State of the State of Delaware on January 12, 2016), as amended from time to time in accordance with the terms hereof and the Act.

“ Code ” means the Internal Revenue Code of 1986, as amended from time to time.

 

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“ Common Unit ” means a Partnership Unit representing a Partnership Interest that is without preference as to distributions and allocations or rights upon voluntary or involuntary liquidation, dissolution or winding up.

“ Consent ” means the consent to, approval of, or vote on a proposed action by a Partner given in accordance with Article 14 .

“ Consent of the Limited Partners ” means the Consent of a Majority in Interest of the Limited Partners, which Consent may be obtained prior to or after the taking of any action for which it is required by this Agreement and may be given or withheld by a Majority in Interest of the Limited Partners, unless otherwise expressly provided herein, in their sole and absolute discretion.

“ Consolidated State Tax Return ” shall have the meaning set forth in Section 10.4 .

“ Contributed Property ” means each property or other asset, in such form as may be permitted by the Act, but excluding cash, contributed or deemed contributed to the Partnership (or deemed contributed to the Partnership on termination and reconstitution thereof pursuant to Section 708 of the Code).

“ Conversion Factor ” means 1.0; provided , that in the event that:

(i) MGP (a) declares or pays a dividend on its outstanding REIT Class A Shares wholly or partly in REIT Class A Shares or makes a distribution to all holders of its outstanding REIT Class A Shares wholly or partly in REIT Class A Shares; (b) splits or subdivides its outstanding REIT Class A Shares or (c) effects a reverse stock split or otherwise combines or reclassifies its outstanding REIT Class A Shares into a smaller number of REIT Class A Shares, then the Conversion Factor shall be adjusted by multiplying the Conversion Factor by a fraction, (I) the numerator of which shall be the number of REIT Class A Shares issued and outstanding on the record date for such dividend, distribution, split, subdivision, reverse split or combination (assuming for such purpose that such dividend, distribution, split, subdivision, reverse split or combination has occurred as of such time), and (II) the denominator of which shall be the actual number of REIT Class A Shares (determined without the above assumption) issued and outstanding on the record date for such dividend, distribution, split, subdivision, reverse split or combination;

(ii) MGP distributes any rights, options or warrants to all holders of its REIT Class A Shares to subscribe for or to purchase or to otherwise acquire REIT Class A Shares (or other securities or rights convertible into, exchangeable for or exercisable for REIT Class A Shares) at a price per share less than the Fair Market Value of a REIT Class A Share on the record date for such distribution (each, a “ Distributed Right ”), then, as of the distribution date of such Distributed Rights or, if later, the time such Distributed Rights become exercisable, the Conversion Factor shall be adjusted by multiplying the Conversion Factor by a fraction (a) the numerator of which shall be the number of REIT Class A Shares issued and outstanding on the record date (or, if later, the date such Distributed Rights become exercisable) plus the maximum number of REIT Class A Shares purchasable under such Distributed Rights and (b) the denominator of which shall be the number of REIT Class A Shares issued and outstanding on the

 

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record date (or, if later, the date such Distributed Rights become exercisable) plus a fraction, (I) the numerator of which is the minimum aggregate purchase price under such Distributed Rights of the maximum number of REIT Class A Shares purchasable under such Distributed Rights and (II) the denominator of which is the Fair Market Value of a REIT Class A Share as of the record date (or, if later, the date such Distributed Rights become exercisable); provided , however , that, if any such Distributed Rights expire or become no longer exercisable, then the Conversion Factor shall be adjusted, effective retroactive to the date of distribution (or, if later, the date such Distributed Rights become exercisable) of the Distributed Rights, to reflect a reduced maximum number of REIT Class A Shares or any change in the minimum aggregate purchase price for the purposes of the above fraction; and

(iii) MGP shall, by dividend or otherwise, distribute to all holders of its REIT Class A Shares evidences of its indebtedness or assets (including securities, but excluding any dividend or distribution referred to in subsection (i) or (ii) above), which evidences of indebtedness or assets relate to assets not received by MGP or its Subsidiaries pursuant to a pro rata distribution by the Partnership, then the Conversion Factor shall be adjusted to equal the amount determined by multiplying the Conversion Factor in effect immediately prior to the close of business on the date fixed for determination of shareholders entitled to receive such distribution by a fraction, (a) the numerator of which shall be such Fair Market Value of a REIT Class A Share on the date fixed for such determination and (b) the denominator of which shall be the Fair Market Value of a REIT Class A Share on the date fixed for such determination less the then fair market value (as reasonably determined by the General Partner) of the portion of the evidences of indebtedness or assets so distributed applicable to one REIT Class A Share.

Any adjustment to the Conversion Factor shall become effective immediately after the effective date of such event retroactive to the record date, if any, for such event (or, if later, the date such Distributed Rights become exercisable). If, however, the General Partner received a Notice of Redemption after the record date, if any, but prior to the effective date of such event, the Conversion Factor shall be determined as if the General Partner had received the Notice of Redemption immediately prior to the record date for such event.

Notwithstanding the foregoing, the Conversion Factor shall not be adjusted in connection with an event described in clauses (i) or (ii) above if, in connection with such event, the Partnership makes a distribution of cash, Partnership Units, REIT Class A Shares and/or rights, options or warrants to acquire Partnership Units and/or REIT Class A Shares with respect to all applicable Common Units or effects a reverse split of, or otherwise combines, the Common Units, as applicable, that is comparable as a whole in all material respects with such event.

“ Debt ” means, as to any Person, as of any date of determination, (i) all indebtedness of such Person for borrowed money or for the deferred purchase price of property or services; (ii) all amounts owed by such Person to banks or other Persons in respect to reimbursement obligations under letters of credit, surety bonds and other similar instruments guaranteeing payment or other performance of obligations by such Person; (iii) all indebtedness for borrowed money or for the deferred purchase price of property or services secured by any lien on any property owned by such Person, to the extent attributable to such Person’s interest in such property, even though such Person has not assumed or become liable for the payment

 

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thereof; and (iv) lease obligations of such Person that, in accordance with generally accepted accounting principles, should be capitalized.

“ Deemed Value of a Partner’s Interest ” means, as of any date with respect to any class of Partnership Interests, the Deemed Value of the Partnership Interests of such class multiplied by the applicable Partner’s Percentage Interest of such class.

“ Deemed Value of the Partnership Interests ” means, as of any date with respect to any class or series of Partnership Interests, the total number of REIT Shares corresponding to such class or series of Partnership Interests (as provided for in Sections 4.1 and 4.3 ) issued and outstanding as of the close of business on such date (excluding any treasury shares) multiplied by the Fair Market Value of a share of such REIT Shares on such date, divided by the Percentage Interest of MGP.

“ Depreciation ” means, for each Partnership Year or other period, an amount equal to the depreciation, amortization or other cost recovery deduction allowable under the Code with respect to a Partnership asset for such year or other period, except that if the Gross Asset Value of a Partnership asset differs from its adjusted basis for federal income tax purposes at the beginning of such year or other period, Depreciation shall be an amount that bears the same ratio to such beginning Gross Asset Value as the federal income tax depreciation, amortization or other cost recovery deduction for such year or other period bears to such beginning adjusted tax basis; provided , however , that if the federal income tax depreciation, amortization or other cost recovery deduction for such year is zero, Depreciation shall be determined with reference to such beginning Gross Asset Value using any reasonable method selected by the General Partner.

“ Distributed Right ” has the meaning set forth in the definition of “ Conversion Factor .”

“ Equity Plan ” means any stock or equity purchase plan, restricted stock or equity plan or other similar equity compensation plan now or hereafter adopted by the Partnership or MGP, including the Plan.

“ ERISA ” means the Employment Retirement Income Security Act of 1974, as amended.

“ Excess Units ” means Tendered Units, the issuance of REIT Common Shares in exchange for which would result in a violation of the restrictions on ownership and transfer of REIT Common Shares set forth in the MGP LLC Agreement.

“ Exchange Act ” means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission promulgated thereunder.

“ Fair Market Value ” means, with respect to any REIT Share, the average of the daily market price for the ten (10) consecutive Trading Days immediately preceding the date with respect to which “Fair Market Value” must be determined hereunder or, if such date is not a Business Day, the immediately preceding Business Day. The market price for each such Trading Day shall be (i) if such shares are listed or admitted to trading on any securities exchange, the closing price, regular way, on such day, or if no such sale takes place on such day, the average of

 

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the closing bid and asked prices on such day, (ii) if such shares are not listed or admitted to trading on any securities exchange, the last reported sale price on such day or, if no sale takes place on such day, the average of the closing bid and asked prices on such day, as reported by a reliable quotation source designated by the General Partner, or (iii) if such shares are not listed or admitted to trading on any securities exchange and no such last reported sale price or closing bid and asked prices are available, the average of the reported high bid and low asked prices on such day, as reported by a reliable quotation source designated by the General Partner, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, on the most recent day (not more than ten (10) days prior to the date in question) for which prices have been so reported; provided , that if there are no bid and asked prices reported during the ten (10) days prior to the date in question, the Fair Market Value of such shares shall be determined by the General Partner acting reasonably and in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate; provided , further , that in connection with determining the Deemed Value of the Partnership Interests for purposes of determining the number of additional Partnership Units issuable upon a Capital Contribution funded by an underwritten public offering of REIT Shares, the Fair Market Value of such shares shall be the public offering price per share of such class of REIT Shares sold.

“ Flow Through Entity ” shall have the meaning set forth in Section 2.6 .

“ Funding Notice ” shall have the meaning set forth in Section 4.3.B .

“ General Partner ” means MGM Growth Properties OP GP LLC or its successor in accordance with the terms of this Agreement as general partner of the Partnership.

“ General Partner Interest ” means the Partnership Interest held by the General Partner in its capacity as General Partner, which Partnership Interest is an interest as a general partner under the Act. A General Partner Interest may be expressed as a number of any type of Partnership Units.

“ Gross Asset Value ” means, with respect to any asset of the Partnership, such asset’s adjusted basis for federal income tax purposes, except as follows:

(i) The initial Gross Asset Value of any asset contributed by a Partner to the Partnership shall be the gross fair market value of such asset, as determined by the contributing Partner and the General Partner; provided , that if the contributing Partner and the General Partner cannot agree on such determination, such determination shall be made by Appraisal.

(ii) The Gross Asset Values of all Partnership assets shall be adjusted to equal their respective gross fair market values, as determined by the General Partner using such reasonable method of valuation as it may adopt, immediately prior to the following events:

 

  (a)

a Capital Contribution (other than a de minimis Capital Contribution, within the meaning of Regulations Section 1.704-1(b)(2)(iv)(f)(5)(i)) to the Partnership by a new or existing Partner as consideration for Partnership Units, if the General Partner reasonably determines that such

 

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  adjustment is necessary or appropriate to reflect the relative economic interests of the Partners in the Partnership;

 

  (b) the distribution by the Partnership to a Partner of more than a de minimis amount (within the meaning of Regulations Section 1.704-1(b)(2)(iv)(f)(5)(i)) of Partnership property as consideration for the redemption of Partnership Units, if the General Partner reasonably determines that such adjustment is necessary or appropriate to reflect the relative economic interests of the Partners in the Partnership;

 

  (c) the liquidation of the Partnership within the meaning of Regulations Section 1.704-1(b)(2)(ii)(g); and

 

  (d) at such other times as the General Partner shall reasonably determine necessary or advisable in order to comply with Regulations Sections 1.704-1(b) and 1.704-2.

(iii) The Gross Asset Value of Partnership assets distributed to any Partner shall be the gross fair market value of such asset on the date of distribution as determined by the distributee and the General Partner, or if the distributee and the General Partner cannot agree on such a determination, by Appraisal.

(iv) If the Gross Asset Value of a Partnership asset has been determined or adjusted pursuant to subparagraph (i) or (ii), such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Income and Net Losses.

“ Group Member ” means a member of the Partnership Group.

“ Incapacity ” or “ Incapacitated ” means, (i) as to any natural person that is a Partner, death, total physical disability or entry by a court of competent jurisdiction adjudicating him or her incompetent to manage his or her Person or his or her estate; (ii) as to any corporation that is a Partner, the filing of a certificate of dissolution, or its equivalent, for the corporation or the revocation of its charter; (iii) as to any partnership that is a Partner, the dissolution and commencement of winding up of the partnership; (iv) as to any estate that is a Partner, the distribution by the fiduciary of the estate’s entire interest in the Partnership; (v) as to any trustee of a trust that is a Partner, the termination of the trust (but not the substitution of a new trustee); or (vi) as to any Partner, the bankruptcy of such Partner. For purposes of this definition, bankruptcy of a Partner shall be deemed to have occurred when (a) the Partner commences a voluntary proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law now or hereafter in effect, (b) the Partner is adjudged as bankrupt or insolvent, or a final and nonappealable order for relief under any bankruptcy, insolvency or similar law now or hereafter in effect has been entered against the Partner, (c) the Partner executes and delivers a general assignment for the benefit of the Partner’s creditors, (d) the Partner files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against the Partner in any proceeding of the nature described in clause (b) above, (e) the Partner seeks, consents to or acquiesces in the appointment of a trustee, receiver or

 

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liquidator for the Partner or for all or any substantial part of the Partner’s properties, (f) any proceeding seeking liquidation, reorganization or other relief under any bankruptcy, insolvency or other similar law now or hereafter in effect has not been dismissed within one hundred twenty (120) days after the commencement thereof, (g) the appointment without the Partner’s consent or acquiescence of a trustee, receiver or liquidator has not been vacated or stayed within ninety (90) days of such appointment, or (h) an appointment referred to in clause (g) is not vacated within ninety (90) days after the expiration of any such stay.

“ Indemnitee ” means (a) any General Partner, (b) any Person who is or was an Affiliate of the General Partner, (c) any Person who is or was a manager, managing member, officer, director, agent, tax matters partner, partnership representative (or similar), fiduciary or trustee of any Group Member, a General Partner or any of their respective Affiliates, (d) any Group Member or any Affiliate of any Group Member, (e) any Person who is or was serving at the request of the General Partner or any of its Affiliates as a manager, managing member, officer, director, agent, tax matters partner, partnership representative (or similar), fiduciary or trustee of another Person; provided , that a Person shall not be an Indemnitee by reason of providing, on a fee-for-services basis, trustee, fiduciary or custodial services, (f) MGM and its Affiliates and (g) any Person that the General Partner designates as an “Indemnitee” for purposes of this Agreement.

“ IRS ” means the U.S. Internal Revenue Service.

“ Landlord ” shall have the meaning set forth in Section 8.6.H .

“ Lead Tendering Partner ” shall have the meaning set forth in Section 8.6.G(3)(b) .

“ Liability ” means any liability or obligation of any nature, whether accrued, contingent or otherwise.

“ Limited Partner ” means any Person named as a Limited Partner on Exhibit A , as such Exhibit may be amended from time to time, or any Substituted Limited Partner or Additional Limited Partner, in such Person’s capacity as a Limited Partner in the Partnership.

“ Limited Partnership Interest ” means a Partnership Interest of a Limited Partner representing a fractional part of the Partnership Interests of all Limited Partners and includes any and all benefits to which the holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. A Limited Partnership Interest may be expressed as a number of Partnership Units.

“ Liquidating Event ” shall have the meaning set forth in Section 13.1 .

“ Liquidator ” shall have the meaning set forth in Section 13.2.A .

“ Majority in Interest of the Limited Partners ” means Limited Partners holding, in the aggregate, Percentage Interests of Limited Partnership Interests that are greater than fifty percent (50%) of the aggregate Percentage Interests of Limited Partnership Interests held by all Limited Partners.

 

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“ Master Lease ” shall have the meaning set forth in Section 8.6.H .

“ MGM ” means MGM Resorts International, a Delaware corporation.

“ MGP ” shall have the meaning set forth in the preamble.

“ MGP LLC Agreement ” means the Amended and Restated Limited Liability Company Agreement of MGP, as may be further amended or restated from time to time.

“ Minimum Gain ” means an amount determined in accordance with Regulations Section 1.704-2(d) by computing, with respect to each Nonrecourse Liability of the Partnership, the amount of gain, if any, that the Partnership would realize if it disposed of the property subject to such Liability for no consideration other than full satisfaction thereof, and by then aggregating the amounts so computed.

“ Net Income ” or “ Net Loss ” means, for each Partnership Year, an amount equal to the Partnership’s taxable income or loss for such Partnership Year, determined in accordance with Section 703(a) of the Code (for this purpose, all items of income, gain loss, or deduction required to be stated separately pursuant to Section 703(a)(1) of the Code shall be included in taxable income or loss), adjusted as follows:

(i) Any income of the Partnership that is exempt from federal income tax and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be added to such taxable income or loss;

(ii) In lieu of the depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss, there shall be taken into account Depreciation for such Partnership Year;

(iii) In the event that the Gross Asset Value of any Partnership asset is adjusted pursuant to clause (ii) or (iii) of the definition of “Gross Asset Value” herein, the amount of such adjustments shall be taken into account as gain or loss from the disposition of such asset for purposes of computing Net Income and Net Loss;

(iv) Any items that are specially allocated pursuant to Sections 6.3 and 6.4 shall not be taken into account in computing Net Income or Net Loss; and

(v) Any expenditures of the Partnership described in Section 705(a)(2)(B) of the Code (or treated as such under Regulations Section 1.704-1(b)(2)(iv)(i)) and not otherwise taken into account in computing Net Income or Net Loss pursuant to this definition of Net Income or Net Loss shall be deducted in calculating such taxable income or loss.

“ New Securities ” means (i) any rights, options, warrants or convertible or exchangeable securities having the right to subscribe for or purchase REIT Shares, excluding grants under any Stock Plan, or (ii) any Debt issued by MGP that provides any of the rights described in clause (i).

 

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“ Nonrecourse Liability ” shall have the meaning set forth in Regulations Section 1.704-2(b)(3).

“ Notice of Redemption ” means the Notice of Redemption substantially in the form of Exhibit B to this Agreement.

“ Offered Shares ” shall have the meaning set forth in Section 8.6.G(1)(a) .

“ Offering Units ” shall have the meaning set forth in Section 8.6.G(1)(a) .

“ Optionee ” means a Person to whom a stock option is granted under any Stock Plan.

“ Original Agreement ” shall have the meaning set forth in the Recitals.

“ Partner ” means a General Partner or a Limited Partner, and “ Partners ” means the General Partner(s) and the Limited Partners.

“ Partner Nonrecourse Debt ” shall have the meaning set forth in Regulations Section 1.704-2(b)(4).

“ Partner Nonrecourse Debt Minimum Gain ” has the meaning set forth in Regulations Section 1.704-2(i). A Partner’s share of Partner Nonrecourse Debt Minimum Gain shall be determined in accordance with Regulations Section 1.704-2(i)(5).

“ Partner Nonrecourse Deduction ” shall have the meaning set forth in Regulations Section 1.704-2(i)(1) and (2), and the amount of Partner Nonrecourse Deductions with respect to a Partner Nonrecourse Debt for a Partnership Year shall be determined in accordance with the rules of Regulations Section 1.704-2(i)(2).

“ Partnership ” means the limited partnership formed under the Act and pursuant to this Agreement, and any successor thereto.

“ Partnership Employee ” means an employee or other service provider of the Partnership or of a Subsidiary of the Partnership, if any, acting in such capacity.

“ Partnership Group ” means the Partnership and its Subsidiaries treated as a single consolidated entity.

“ Partnership Interest ” means an ownership interest in the Partnership of either a Limited Partner or the General Partner and includes any and all benefits to which the holder of such a Partnership Interest may be entitled as provided in this Agreement, together with all obligations of such Person to comply with the terms and provisions of this Agreement. There may be one or more classes or series of Partnership Interests as provided in Section 4.3 . A Partnership Interest may be expressed as a number of Partnership Units. Unless otherwise expressly provided for by the General Partner at the time of the original issuance of any Partnership Interests, all Partnership Interests (whether of a Limited Partner or a General Partner) shall be of the same class or series.

 

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“ Partnership Minimum Gain ” shall have the meaning set forth in Regulations Section 1.704-2(b)(2).

“ Partnership Record Date ” means the record date established by the General Partner for the distribution of available cash with respect to Partnership Interests that are not entitled to any preference in distribution pursuant to Section 5.1 , which record date shall be the same as the record date established by the General Partner for a distribution to its shareholders of some or all of its portion of such distribution.

“ Partnership Tax Audit Rules ” means Sections 6221 through 6241 of the Code, as amended by the Bipartisan Budget Act of 2015, together with any guidance issued thereunder or successor provisions and any similar provision of state or local tax laws.

“ Partnership Unit ” means, with respect to any class of Partnership Interest, a fractional, undivided share of such class of Partnership Interest issued pursuant to Sections 4.1 , 4.3 , and 4.4 . The ownership of Partnership Units may be (but is not required to be) evidenced by a certificate for units substantially in the form of Exhibit C hereto or as the General Partner may otherwise determine with respect to any class of Partnership Units issued from time to time under Sections 4.1 , 4.3 , and 4.4 .

“ Partnership Year ” means the fiscal year of the Partnership, which shall be the calendar year.

“ Percentage Interest ” means, as to a Partner holding a class or series of Partnership Interests, its interest in such class or series as determined by dividing the Partnership Units of such class or series owned by such Partner by the total number of Partnership Units of such class then outstanding as specified on Exhibit A , as such Exhibit may be amended from time to time. If the Partnership issues more than one class or series of Partnership Interests, the interest in the Partnership among the classes or series of Partnership Interests shall be determined as set forth in the amendment to the Partnership Agreement setting forth the rights and privileges of such additional classes or series of Partnership Interest, if any, as contemplated by Section 4.3.C .

“ Permitted Transfer ” means a Transfer by a Limited Partner of a Partnership Interest to MGM or any of its controlled Affiliates.

“ Person ” means an individual or a corporation, partnership, limited liability company, trust, unincorporated organization, association or other entity.

“ Plan ” means that certain MGM Growth Properties LLC 2016 Omnibus Incentive Plan.

“ Properties ” means such interests in real property and personal property, including, without limitation, fee interests, interests in ground leases, interests in joint ventures, interests in mortgages and Debt instruments, as the Partnership may hold directly or indirectly from time to time.

“ Redemption ” shall have the meaning set forth in Section 8.6.A .

 

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“ Regulations ” means the final, temporary or proposed income tax regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations).

“ Regulatory Allocations ” shall have the meaning set forth in Section 6.3.F .

“ REIT ” means a real estate investment trust within the meaning of Sections 856 through 860 of the Code.

“ REIT Class A Share ” means a Class A Common Share as such term is defined in the MGP LLC Agreement.

“ REIT Common Share ” means a Common Share as such term is defined in the MGP LLC Agreement.

“ REIT Requirements ” shall have the meaning set forth in Section 5.1.B .

“ REIT Share ” means a Share as such term is defined in the MGP LLC Agreement.

“ REIT Shares Amount ” means, as of any date, an aggregate number of REIT Class A Shares equal to the number of Tendered Units or Repurchased REIT Common Shares, as applicable, multiplied by the Conversion Factor.

“ REIT Shares Election ” shall have the meaning set forth in Section 8.6.B .

“ Repurchased REIT Shares ” shall have the meaning set forth in the Section 7.5.C .

“ Safe Harbors ” shall have the meaning set forth in Section 11.4.E .

“ Securities Act ” means the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

“ SEC ” means the U.S. Securities and Exchange Commission.

“ Separate Return Taxable Income ” shall have the meaning set forth in Section 10.4 .

“ Single Funding Notice ” shall have the meaning set forth in Section 8.6.G(1)(b) .

“ Specified Redemption Date ” means the day of receipt by the General Partner of a Notice of Redemption; provided that if the conflicts committee of the board of directors of MGP causes MGP to elect a Stock Offering Funding pursuant to Section 8.6.G , such Specified Redemption Date shall be deferred until the next Business Day following the date of the closing of the Stock Offering Funding.

“ Stock Offering Funding ” shall have the meaning set forth in Section 8.6.G(1)(a) .

 

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“ Stock Plan ” means any share incentive, share option, share ownership or employee benefits plan of MGP.

“ Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company, joint venture or other entity of which 50% or more of (i) the voting power of the voting equity securities or (ii) the outstanding equity interests is owned, directly or indirectly, by such Person.

“ Substituted Limited Partner ” means a Person who is admitted as a Limited Partner of the Partnership pursuant to Section 11.2 .

“ Tax Adjustment ” shall have the meaning set forth in Section 10.4 .

“ Tax Matters Representative ” shall have the meaning set forth in Section 10.2.A .

“ Tenant ” shall have the meaning set forth in Section 8.6.H .

“ Tendered Units ” shall have the meaning set forth in Section 8.6.A .

“ Tendering Partner ” shall have the meaning set forth in Section 8.6.A .

“ Terminating Capital Transaction ” means any sale or other disposition of all or substantially all of the assets of the Partnership or a related series of transactions that, taken together, result in the sale or other disposition of all or substantially all of the assets of the Partnership.

“ Termination Transaction ” shall have the meaning set forth in Section 11.5.A .

“ Trading Day ” means, if REIT Shares are listed or admitted to trading on any securities exchange, any day on which such shares are traded on such securities exchange (or, if there are more than one such exchange, the principal such exchange) or (ii) if such shares are not listed or admitted to trading on any securities exchange, any date for which sales prices or closing bid and asked prices (or, if they are not available, high bid and low asked prices) are reported by a reliable quotation source designated by MGP.

“ Transfer ” shall have the meaning set forth in Section 11.1 .

“ Unrestricted Person ” means (a) each Indemnitee, (b) each Partner, (c) each Person who is or was a member, partner, director, officer, employee or agent of any Group Member or General Partner or any of their respective Affiliates and (d) any Person that the General Partner designates as an “Unrestricted Person” for purposes of this Agreement.

“ Vesting Date ” has the meaning set forth in Section 4.4.C(2)

 

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ARTICLE 2

ORGANIZATIONAL MATTERS

Section 2.1 Organization

The Partnership is a limited partnership formed and continued pursuant to the provisions of the Act and upon the terms and subject to the conditions set forth in this Agreement. Except as expressly provided herein to the contrary, the rights and obligations of the Partners and the administration and termination of the Partnership shall be governed by the Act. The Partnership Interest of each Partner shall be personal property for all purposes.

Section 2.2 Name

The name of the Partnership is MGM Growth Properties Operating Partnership LP. The Partnership’s business may be conducted under any other name or names deemed advisable by the General Partner, including the name of the General Partner or any Affiliate thereof. The words “Limited Partnership,” “LP,” “Ltd.” or similar words or letters shall be included in the Partnership’s name where necessary for the purposes of complying with the laws of any jurisdiction that so requires. The General Partner in its sole and absolute discretion may change the name of the Partnership at any time and from time to time and shall notify the Limited Partners of such change in the next regular communication to the Limited Partners.

Section 2.3 Resident Agent; Principal Office

The registered agent of the Partnership for service of process in the State of Delaware and the registered office of the Partnership in the State of Delaware is c/o Corporation Service Company, 2711 Centerville Road, Suite 400, Wilmington, Delaware 19808. The General Partner may from time to time designate in its sole and absolute discretion another registered agent or another location for the registered office or principal place of business, and shall provide the Limited Partners with notice of such change in the next regular communication to the Limited Partners. The principal office of the Partnership shall be located at 3950 Las Vegas Boulevard South, Las Vegas, Nevada 89109 or at such other place as the General Partner may from time to time designate by notice to the Limited Partners. The Partnership may maintain offices at such other place or places within or outside the State of Delaware as the General Partner deems advisable.

Section 2.4 Power of Attorney

A. Each Limited Partner and each Assignee constitutes and appoints the General Partner, any Liquidator and the authorized officers and attorneys-in-fact of each of the foregoing, and each of those acting singly, in each case with full power of substitution, as its true and lawful agent and attorney-in-fact, with full power and authority in its name, place and stead to:

(1) execute, swear to, seal, acknowledge, deliver, file and record in the appropriate public offices (a) all certificates, documents and other instruments (including, without limitation, this Agreement and the Certificate and all amendments or restatements

 

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thereof) that the General Partner or any Liquidator deems appropriate or necessary to form, qualify or continue the existence or qualification of the Partnership as a limited partnership (or a partnership in which the Limited Partners have limited Liability) in the State of Delaware and in all other jurisdictions in which the Partnership may conduct business or own property; (b) all instruments that the General Partner or any Liquidator deems appropriate or necessary to reflect any amendment, change, modification or restatement of this Agreement duly adopted in accordance with its terms; (c) all conveyances and other instruments or documents that the General Partner or any Liquidator deems appropriate or necessary to reflect the dissolution and liquidation of the Partnership pursuant to the terms of this Agreement, including, without limitation, a certificate of cancellation; (d) all instruments relating to the admission, withdrawal, removal or substitution of any Partner pursuant to, or other events described in, Articles 11 , 12 or 13 or the Capital Contribution of any Partner; and (e) all certificates, documents and other instruments relating to the determination of the rights, preferences and privileges of Partnership Interests; and

(2) execute, swear to, seal, acknowledge and file all ballots, consents, approvals, waivers, certificates and other instruments appropriate or necessary, in the sole and absolute discretion of the General Partner or any Liquidator, to make, evidence, give, confirm or ratify any vote, consent, approval, agreement or other action that is made or given by the Partners hereunder or is consistent with the terms of this Agreement or appropriate or necessary, in the sole discretion of the General Partner or any Liquidator, to effectuate the terms or intent of this Agreement.

Nothing contained herein shall be construed as authorizing the General Partner or any Liquidator to amend this Agreement except in accordance with Article 14 or as may be otherwise expressly provided for in this Agreement.

B. The foregoing power of attorney is hereby declared to be irrevocable and a power coupled with an interest, in recognition of the fact that each of the Partners will be relying upon the power of the General Partner and any Liquidator to act as contemplated by this Agreement in any filing or other action by it on behalf of the Partnership, and it shall survive and not be affected by the subsequent Incapacity of any Limited Partner or Assignee or the Transfer of all or any portion of such Limited Partner’s or Assignee’s Partnership Units and shall extend to such Limited Partner’s or Assignee’s heirs, successors, assigns and personal representatives. Each such Limited Partner or Assignee hereby agrees to be bound by any representation made by the General Partner or any Liquidator, acting in good faith pursuant to such power of attorney; and each such Limited Partner or Assignee hereby waives any and all defenses which may be available to contest, negate or disaffirm the action of the General Partner or any Liquidator, taken in good faith under such power of attorney. Each Limited Partner or Assignee shall execute and deliver to the General Partner or any Liquidator, within fifteen (15) days after receipt of the General Partner’s or Liquidator’s request therefor, such further designation, powers of attorney and other instruments as the General Partner or any Liquidator, as the case may be, may reasonably deem necessary to effectuate this Agreement and the purposes of the Partnership.

 

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Section 2.5 Term

The term of the Partnership shall be perpetual unless the Partnership is dissolved sooner pursuant to the provisions of Article 13 or as otherwise provided by law.

Section 2.6 Number of Partners

Without the consent of the General Partner, which may be given or withheld in its sole discretion, the Partnership shall not at any time have more than 100 partners (including as partners those persons indirectly owning an interest in the Partnership through a partnership, limited liability company (that is treated as a partnership for federal income tax purposes), S corporation or grantor trust (such entity, a “ Flow Through Entity ”), but only if substantially all of the value of such person’s interest in the Flow Through Entity is attributable to the Flow Through Entity’s interest (direct or indirect) in the Partnership).

Section 2.7 Partnership Interests are Securities

All Partnership Interests shall be securities within the meaning of, and governed by, (i) Article 8 of the Delaware Uniform Commercial Code as in effect from time to time in the State of Delaware and (ii) Article 8 of the Uniform Commercial Code of any other applicable jurisdiction.

ARTICLE 3

PURPOSE

Section 3.1 Purpose and Business

The purpose and nature of the business to be conducted by the Partnership shall be to (a) engage directly in, or enter into or form, hold and dispose of any corporation, partnership, joint venture, limited liability company or other arrangement to engage indirectly in, any business activity that is approved by the General Partner, in its sole discretion, and that lawfully may be conducted by a limited partnership organized pursuant to the Act and, in connection therewith, to exercise all of the rights and powers conferred upon the Partnership pursuant to the agreements relating to such business activity; and (b) do anything necessary or appropriate to the foregoing, including the making of capital contributions or loans to any Subsidiary or Affiliate, provided , however , that such business shall be limited to and conducted in such a manner as to permit MGP at all times to be classified as a REIT for federal income tax purposes, unless the board of directors of MGP shall have determined that it is no longer in the best interests of MGP to attempt to, or continue to, qualify as a REIT. To the fullest extent permitted by law, the General Partner shall have no duty or obligation to propose or approve, and may, in its sole discretion, decline to propose or approve, the conduct by the Partnership of any business, free of any duty or obligation whatsoever to the Partnership or any Partner and, in declining to so propose or approve, shall not be required to act in good faith or pursuant to any other standard imposed by this Agreement, any other agreement contemplated hereby or under the Act or any other law, rule or regulation or at equity. Without limiting MGP’s right, in its sole discretion, to cease to qualify as a REIT, the Partners acknowledge that MGP’s continued qualification as a REIT and the avoidance of income and excise taxes on MGP inure to the

 

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benefit of all the Partners and not only MGP. Notwithstanding anything to the contrary in this Agreement, the General Partner shall be empowered to do any and all acts and things necessary or prudent to ensure that the Partnership will not be classified as a “publicly traded partnership” taxable as a corporation for purposes of Section 7704 of the Code.

Section 3.2 Powers

The Partnership is empowered to do any and all acts and things necessary, appropriate, proper, advisable, incidental to or convenient for the furtherance and accomplishment of the purposes and business described herein and for the protection and benefit of the Partnership, including, without limitation, full power and authority, directly or through its ownership interest in other entities, to enter into, perform and carry out contracts of any kind, borrow money and issue evidences of indebtedness, whether or not secured by mortgage, deed of trust, pledge or other lien, acquire, own, manage, improve and develop real property, and lease, sell, transfer and dispose of real property; provided , however , that the Partnership shall not take, or refrain from taking, any action which, in the judgment of the General Partner, in its sole and absolute discretion, would be reasonably likely to (i) adversely affect the ability of MGP to continue to qualify as a REIT, (ii) subject MGP to any additional taxes under Section 857 or Section 4981 of the Code or (iii) violate any law or regulation of any governmental body or agency having jurisdiction over MGP or its securities or the Partnership or any of its Subsidiaries, unless any such action (or inaction) under clause (i), (ii) or (iii) shall have been specifically consented to by MGP in writing.

Section 3.3 Partnership Only for Purposes Specified

The Partnership shall be a partnership only for the purposes specified in Section 3.1 , and this Agreement shall not be deemed to create a company, venture or partnership among the Partners with respect to any activities whatsoever other than the activities within the purposes of the Partnership as specified in Section 3.1 . Except as otherwise provided in this Agreement, no Partner shall have any authority to act for, bind, commit or assume any obligation or responsibility on behalf of the Partnership, its properties or any other Partner. No Partner, in its capacity as a Partner under this Agreement, shall be responsible or liable for any indebtedness or obligation of another Partner, nor shall the Partnership be responsible or liable for any indebtedness or obligation of any Partner, incurred either before or after the execution or delivery of this Agreement by such Partner, except as to those responsibilities, Liabilities, indebtedness or obligations incurred pursuant to and as limited by the terms of this Agreement and the Act.

Section 3.4 Representations and Warranties by the Parties

A. Each Partner that is a natural person represents and warrants to each other Partner that (i) such Partner has the legal capacity to enter into this Agreement and perform such Partner’s obligations hereunder, (ii) the consummation of the transactions contemplated by this Agreement to be performed by such Partner will not result in a breach or violation of, or a default under, any agreement by which such Partner or any of such Partner’s property is bound, or any statute, regulation, order or other law to which such Partner is subject, and (iii) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms.

 

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B. Each Partner that is not a natural person represents and warrants to each other Partner that (i) its execution and delivery of this Agreement and all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action, including, without limitation, that of its general partner(s), committee(s), trustee(s), member(s), beneficiaries, directors and/or shareholder(s), as the case may be, as required, (ii) the consummation of such transactions shall not result in a breach or violation of, or a default under, its certificate of limited partnership, partnership agreement, trust agreement, limited liability company operating agreement, charter or bylaws, as the case may be, any agreement by which such Partner or any of such Partner’s properties or any of its partners, beneficiaries, trustees, members, directors or shareholders, as the case may be, is or are bound, or any statute, regulation, order or other law to which such Partner or any of its partners, trustees, beneficiaries, members, directors or shareholders, as the case may be, is or are subject, and (iii) this Agreement is binding upon, and enforceable against, such Partner in accordance with its terms.

C. Each Partner represents, warrants and agrees that (i) it is an “accredited investor” as defined in Rule 501 promulgated under the Securities Act, (ii) it has acquired and continues to hold its interest in the Partnership for its own account for investment purposes only and not for the purpose of, or with a view toward, the resale or distribution of all or any part thereof in violation of applicable laws, nor with a view toward selling or otherwise distributing such interest or any part thereof at any particular time or under any predetermined circumstances in violation of applicable laws. Each Partner further represents and warrants that it is a sophisticated investor, able and accustomed to handling sophisticated financial matters for itself, particularly real estate investments, and that it has a sufficiently high net worth that it does not anticipate a need for the funds that it has invested in the Partnership in what it understands to be a highly speculative and illiquid investment.

D. The representations and warranties contained in Sections 3.4.A , 3.4.B and 3.4.C shall survive the execution and delivery of this Agreement by each Partner and the dissolution, liquidation, termination and winding up of the Partnership.

E. Each Partner hereby acknowledges that no representations as to potential profit, cash flows, funds from operations or yield, if any, in respect of the Partnership, MGP or any other Person have been made by any Partner or any employee or representative or Affiliate of any Partner, and that projections and any other information, including, without limitation, financial and descriptive information and documentation, which may have been in any manner submitted to such Partner shall not constitute any representation or warranty of any kind or nature, express or implied, and no representation or warranty of any kind or nature has been made by any Partner or any employee or representative or Affiliate of any Partner with respect thereto.

F. Each Partner hereby acknowledges that, except for any express representations, warranties and covenants of the General Partner or the Partnership contained in this Agreement, no Partner has relied upon nor will any Partner rely upon, either directly or indirectly, any representation or warranty of the General Partner or the Partnership or any other Partner or any of their respective agents, and each Partner acknowledges that no such representations have been made. Each Partner represents that it is a knowledgeable, experienced

 

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and sophisticated investor and that it is relying solely on its own expertise and that of such Partner’s consultants in acquiring a Partnership Interest and thereby an interest in the Properties from time to time acquired by the Partnership. Except for the express representations, warranties and covenants of the General Partner or the Partnership contained in this Agreement, each Partner is relying solely upon its own independent inspection, investigation and analysis as it deems necessary or appropriate, including, without limitation, an analysis of any and all matters concerning the condition of the Properties and their suitability for the Partnership’s intended purposes, and a review of all applicable laws, ordinances, rules and governmental regulations (including, but not limited to, those relative to building, zoning and land use) affecting the development, use, occupancy or enjoyment of the Properties. Each Partner assumes the risk that adverse matters, including, but not limited to, adverse physical and environmental conditions, may not have been revealed by any Partner’s inspections and investigations. Each Partner acknowledges and agrees that such Partner is acquiring its Partnership Interest “AS-IS, WHERE-IS” and “WITH ALL FAULTS.” Neither the General Partner nor the Partnership is liable or bound in any manner by any oral or written statements, representations, or information furnished by any broker, agent, employee, servant or other person, unless the same are specifically set forth or referred to herein. Each Partner has fully reviewed the disclaimers and waivers set forth in this Agreement with its counsel and understands the significance and effect thereof. Each Partner acknowledges and agrees that the disclaimers and other agreements set forth in this Agreement are an integral part of this Agreement and that the General Partner would not have entered into this Agreement without this disclaimer and other agreements set forth in this Agreement.

G. Notwithstanding the foregoing, the General Partner may, in its sole and absolute discretion, permit the modification of any of the representations and warranties contained in Sections 3.4.A , 3.4.B and 3.4.C above as applicable to any Partner; provided , that such representations and warranties, as modified, shall be set forth in a separate writing addressed to the Partnership and the General Partner.

ARTICLE 4

CAPITAL CONTRIBUTIONS

Section 4.1 Capital Contributions of the Partners

At the time of their respective execution of this Agreement, the Partners shall make Capital Contributions as set forth on Exhibit A . The Partners shall own Partnership Units of the class or series and in the amounts and Percentage Interests set forth on Exhibit A , which Exhibit A shall be adjusted from time to time by the General Partner to the extent necessary to reflect accurately exchanges, redemptions, Capital Contributions, the issuance of additional Partnership Units or similar events. Except as required by law or as otherwise provided in Sections 4.3 and 4.4 , no Partner shall be required or permitted to make any additional Capital Contributions or loans to the Partnership. Unless otherwise specified by the General Partner at the time of the creation of any class of Partnership Interests, such Partnership Interests shall be Common Units and the class or series of REIT Shares corresponding thereto shall be REIT Class A Shares.

 

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Section 4.2 Loans by Third Parties

The Partnership may incur Debt, or enter into other similar credit, guarantee, financing or refinancing arrangements for any purpose (including, without limitation, in connection with any acquisition of Properties) upon such terms as the General Partner determines appropriate; provided , that the Partnership shall not incur any Debt that is recourse to any Partner, except to the extent otherwise agreed to by the applicable Partner in its sole discretion.

Section 4.3 Additional Funding and Capital Contributions

A. General . The General Partner may, at any time and from time to time, determine that the Partnership requires additional funds (“ Additional Funds ”) for the acquisition of additional Properties, redemption of Partnership Units or any other purposes as the General Partner may determine. Additional Funds may be raised by the Partnership, at the election of the General Partner, from (i) outside borrowings (subject to Section 4.2 ), (ii) MGP or any of its Affiliates or (iii) additional Capital Contributions (subject to this Section 4.3 ).

B. Funding Notice . The General Partner shall give written notice (the “ Funding Notice ”) to the Limited Partners of the need for Additional Funds and the anticipated source(s) thereof.

C. Issuance of Additional Partnership Interests . Upon delivery of a Funding Notice, the General Partner may raise all or any portion of the Additional Funds by accepting additional Capital Contributions. In connection with any such additional Capital Contributions (of cash or property), the General Partner is hereby authorized to cause the Partnership from time to time to issue to Partners (including the General Partner) or other Persons (including, without limitation, in connection with the contribution of property to the Partnership) additional Common Units or other Partnership Interests in one or more classes, or one or more series of any of such classes, with such designations, preferences and relative, participating, optional or other special rights, powers and duties, including rights, powers and duties senior to then-existing Limited Partnership Interests, all as shall be determined by the General Partner, subject to Delaware law, including, without limitation, (i) the allocations of items of Partnership income, gain, loss, deduction and credit to such class or series of Partnership Interests, (ii) the right of each such class or series of Partnership Interests to share in Partnership distributions and (iii) the rights of each such class or series of Partnership Interests upon dissolution and liquidation of the Partnership; provided , that this Agreement shall be amended to the extent necessary to reflect the terms of any such Partnership Interests in one or more classes, or one or more series of any of such classes, including such designations, preferences and relative, participating, optional or other special rights, powers and duties, at the time of the issuance of additional Partnership Interests.

D. Issuance of REIT Common Shares or Other Securities by MGP . MGP may not issue any additional REIT Common Shares (other than REIT Common Shares issued pursuant to Section 8.6 or pursuant to a dividend or distribution (including any share split) of REIT Common Shares to all of its shareholders that would result in an adjustment to the Conversion Factor in accordance with its terms), other REIT Shares or New Securities unless (i)

 

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the General Partner causes the Partnership to issue to MGP, Partnership Interests or rights, options, warrants or convertible or exchangeable securities of the Partnership having designations, preferences and other rights, all such that the economic interests thereof are substantially similar to those of the REIT Common Shares, other REIT Shares or New Securities being issued and (ii) MGP makes a Capital Contribution of the net proceeds from the issuance of such additional REIT Common Shares, other REIT Shares or New Securities, as the case may be, and from the exercise of the rights contained in such additional New Securities, as the case may be; provided , that MGP may use a portion of the proceeds received from such issuance to acquire other assets ( provided , that such other assets are contributed to the Partnership pursuant to the terms of this Agreement). Without limiting the foregoing, MGP is expressly authorized to issue REIT Common Shares, other REIT Shares or New Securities for no tangible value or for less than fair market value, and the General Partner is expressly authorized to cause the Partnership to issue to MGP corresponding Partnership Interests, so long as (x) the General Partner concludes in good faith that such issuance of Partnership Interests is in the interests of the Partnership, and (y) MGP contributes all proceeds, if any, from such issuance and exercise to the Partnership.

E. Percentage Interest Adjustments in the Case of Capital Contributions for Partnership Units . Upon the acceptance of additional Capital Contributions in exchange for any class or series of Partnership Units, the Percentage Interest related thereto shall be equal to a fraction, (i) the numerator of which is equal to the amount of such additional Capital Contribution as of the Adjustment Date and (ii) the denominator of which is equal to the sum of (a) the Deemed Value of the Partnership Interests of such class or series (computed as of the Business Day immediately preceding the Adjustment Date) and (b) the aggregate amount of additional Capital Contributions contributed to the Partnership on such Adjustment Date in respect of such class or series of Partnership Interests. The Percentage Interest of each other Partner holding Partnership Interests of such class or series not making a full pro rata Capital Contribution (without implying any right to make such a pro rata Capital Contribution) shall be adjusted to equal a fraction, (I) the numerator of which is equal to the sum of (x) the Deemed Value of a Partner’s Interest of such Limited Partner in respect of such class or series (computed as of the Business Day immediately preceding the Adjustment Date) and (y) the amount of additional Capital Contributions made by such Partner to the Partnership in respect of such class or series of Partnership Interests as of such Adjustment Date and (II) the denominator of which is equal to the sum of (1) the Deemed Value of the Partnership Interests of such class or series (computed as of the Business Day immediately preceding the Adjustment Date) and (2) the aggregate amount of additional Capital Contributions contributed by all Partners and/or third parties to the Partnership on such Adjustment Date in respect of such class or series; provided , however , that solely for purposes of calculating a Partner’s Percentage Interest pursuant to this Section 4.3.E , cash Capital Contributions by MGP will be deemed to equal the actual cash contributed by MGP net, in the case of cash contributions funded by an offering of any REIT Shares, of any offering costs attributable to the cash contributed to the Partnership. The General Partner shall promptly give each Partner written notice of its Percentage Interest, as adjusted.

F. In the event that the actual proceeds received by MGP in connection with any issuance of additional REIT Common Shares, other REIT Shares or New Securities are less than the gross proceeds of such issuance as a result of any underwriter’s discount or other expenses paid in connection with such issuance, then, except as provided in Section 7.4 , MGP shall be deemed to have made a Capital Contribution to the Partnership in the amount equal to

 

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the sum of the net proceeds of such issuance plus the amount of such underwriter’s discount and other expenses paid by MGP (which discount and expense shall be treated as an expense for the benefit of the Partnership for purposes of Section 7.4.B ). In the case of the issuance of REIT Common Shares by MGP in any offering, whether registered under the Securities Act or exempt from such registration, underwritten, offered and sold directly to investors or through agents or other intermediaries, or otherwise distributed, for purposes of determining the number of additional Common Units issuable upon a Capital Contribution funded by the net proceeds thereof consistently with the immediately preceding sentence, any discount from the then current market price of REIT Common Shares shall be disregarded such that an equal number of Common Units can be issued to MGP as the number of REIT Common Shares sold by MGP in such offering. In the case of issuances of REIT Common Shares, other capital stock of MGP or New Securities pursuant to any Stock Plan at a discount from fair market value or for no value, the amount of such discount representing compensation to the employee, as determined by the General Partner, shall be treated as an expense for the benefit of the Partnership for purposes of Section 7.4.B and, as a result, MGP shall be deemed to have made a Capital Contribution to the Partnership in an amount equal to the sum of any net proceeds of such issuance plus the amount of such expense.

G. In the event that the Partnership issues Partnership Interests pursuant to this Section 4.3 , the General Partner shall make such revisions to this Agreement (without any requirement of receiving approval of the Limited Partners) as it deems necessary to reflect the issuance of such additional Partnership Interests and the special rights, powers, and duties associated therewith.

H. Nothing in this Agreement shall be construed or applied to preclude or restrain the General Partner or MGP from adopting, modifying or terminating Stock Plans for the benefit of employees, directors or other business associates of the General Partner, MGP, the Partnership or any of their Affiliates. The Partners acknowledge and agree that, in the event that any such Stock Plan is adopted, modified or terminated by the General Partner or MGP, amendments to this Agreement may become necessary or advisable and that any such amendments requested by the General Partner or MGP shall not require any Consent or approval by the Limited Partners.

I. Except as provided in Section 7.3.C(2) , it is the intention of the Partners that at all times each Common Unit shall be equivalent in value to each Class A REIT Share and the definition of Conversion Factor is intended to achieve such result. If at any time the application of the Conversion Factor would work an unfair or unintended result taking into account the intention of the Partners, then the General Partner shall revise the definition of Conversion Factor so as to give effect to the intention of the Partners.

Section 4.4 Stock Plans and Equity Plans

A. Options Granted to Persons other than Partnership Employees . If at any time or from time to time, in connection with any Stock Plan, a stock option granted for REIT Common Shares to a Person other than a Partnership Employee is duly exercised:

 

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(1) MGP shall, as soon as practicable after such exercise, make a Capital Contribution to the Partnership in an amount equal to the exercise price paid to MGP by such exercising party in connection with the exercise of such stock option.

(2) Notwithstanding the amount of the Capital Contribution actually made pursuant to Section 4.4.A(1) , MGP shall be deemed to have contributed to the Partnership as a Capital Contribution, in lieu of the Capital Contribution actually made and in consideration of an additional Limited Partner Interest (expressed in and as additional Common Units), an amount equal to the Fair Market Value of a REIT Class A Share as of the date of exercise multiplied by the number of REIT Common Shares then being issued in connection with the exercise of such stock option.

(3) An equitable Percentage Interest adjustment shall be made in which MGP shall be treated as having made a cash contribution equal to the amount described in Section 4.4.A(2) .

B. Options Granted to Partnership Employees . If at any time or from time to time, in connection with any Stock Plan, a stock option granted for REIT Common Shares to a Partnership Employee is duly exercised:

(1) MGP shall sell to the Optionee, and the Optionee shall purchase from MGP, for a cash price per share equal to the Fair Market Value of a REIT Class A Share at the time of the exercise, the number of REIT Common Shares equal to (a) the exercise price payable by the Optionee in connection with the exercise of such stock option divided by (b) the Fair Market Value of a REIT Class A Share at the time of such exercise.

(2) MGP shall sell to the Partnership (or if the Optionee is an employee or other service provider of a Subsidiary of the Partnership, MGP shall sell to such Subsidiary of the Partnership), and the Partnership (or such Subsidiary, as applicable) shall purchase from MGP, a number of REIT Common Shares equal to (a) the number of REIT Common Shares as to which such stock option is being exercised less (b) the number of REIT Common Shares sold pursuant to Section 4.4.B(1) . The purchase price per REIT Common Share for such sale of REIT Common Shares to the Partnership (or such subsidiary) shall be the Fair Market Value as of the date of exercise of such stock option.

(3) The Partnership shall transfer to the Optionee (or if the Optionee is an employee or other service provider of a Subsidiary of the Partnership, such Subsidiary shall transfer to the Optionee) at no additional cost, as additional compensation, the number of REIT Common Shares described in Section 4.4.B(2) .

(4) MGP shall, as soon as practicable after such exercise, make a Capital Contribution to the Partnership of an amount equal to all proceeds received (from whatever source, but excluding any payment in respect of payroll taxes or other withholdings) by MGP in connection with the exercise of such stock option. An equitable Percentage Interest adjustment shall be made as a result of such contribution.

C. Restricted Stock Granted to Persons other than Partnership Employees . If at any time or from time to time, in connection with any Equity Plan (other than a Stock Plan),

 

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any REIT Common Shares are issued to a Person other than a Partnership Employee in consideration for services performed for MGP:

(1) MGP shall issue such number of REIT Common Shares as are to be issued to such Person in accordance with the Equity Plan; and

(2) On the date (such date, the “ Vesting Date ”) that the Fair Market Value of such shares is includible in the taxable income of such Person, the following events will be deemed to have occurred: (a) MGP shall be deemed to have contributed the Fair Market Value of such REIT Class A Shares to the Partnership as a Capital Contribution, and (b) the Partnership shall issue to MGP on the Vesting Date a number of Common Units equal to the number of newly issued REIT Common Shares divided by the Conversion Factor then in effect.

D. Restricted Stock Granted to Partnership Employees . If at any time or from time to time, in connection with any Equity Plan (other than a Stock Plan), any REIT Common Shares are issued to a Partnership Employee (including any REIT Common Shares that are subject to forfeiture in the event such Partnership Employee terminates his employment by the Partnership or the Partnership Subsidiaries) in consideration for services performed for the Partnership or the Partnership Subsidiaries:

(1) MGP shall issue such number of REIT Common Shares as are to be issued to the Partnership Employee in accordance with the Equity Plan;

(2) on the Vesting Date, the following events will be deemed to have occurred: (a) MGP shall be deemed to have sold such shares to the Partnership (or if the Partnership Employee is an employee or other service provider of a Subsidiary of the Partnership, to such Subsidiary) for a purchase price equal to the Fair Market Value, (b) the Partnership (or such Subsidiary) shall be deemed to have delivered the shares to the Partnership Employee, (c) MGP shall be deemed to have contributed the purchase price to the Partnership as a Capital Contribution, and (d) in the case where the Partnership Employee is an employee of a Subsidiary of the Partnership, the Partnership shall be deemed to have contributed such amount to the capital of such Subsidiary; and

(3) the Partnership shall issue to MGP on the Vesting Date a number of Common Units equal to the number of newly issued REIT Common Shares divided by the Conversion Factor then in effect in consideration for the Capital Contribution described in Section 4.4.D(2)(c) .

E. Future Stock Incentive Plans . Nothing in this Agreement shall be construed or applied to preclude or restrain MGP or the General Partner from adopting, modifying or terminating stock incentive plans for the benefit of employees, directors or other business associates of MGP, the Partnership or any of their Affiliates. The Partners acknowledge and agree that, in the event that any such plan is adopted, modified or terminated by MGP or the General Partner, amendments to this Section 4.4 may become necessary or advisable and that any approval or consent to any such amendments requested by the General Partner shall be deemed granted by the Limited Partners.

 

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F. Issuance of Partnership Common Units . The Partnership is expressly authorized to issue Common Units in accordance with any Stock Plan or Equity Plan pursuant to this Section 4.4 without any further act, approval or vote of any Partner or any other Persons.

Section 4.5 Other Contribution Provisions

In the event that any Partner is admitted to the Partnership (or any existing Partner is issued additional Partnership Interests) and is given a Capital Account in exchange for services rendered to the Partnership, such transaction shall be treated by the Partnership and the affected Partner as if the Partnership had compensated such Partner in cash and the Partner had contributed such cash to the capital of the Partnership. In addition, with the consent of the General Partner, one or more Limited Partners may enter into contribution agreements with the Partnership which have the effect of providing a guarantee of certain obligations of the Partnership.

Section 4.6 Capital Accounts

A. The Partnership shall establish and maintain a separate capital account (each, a “ Capital Account ”) for each Partner, including a Partner who shall pursuant to the provisions hereof acquire a Partnership Interest, which Capital Account shall be:

(1) Credited with the amount of cash contributed by such Partner to the capital of the Partnership; the initial Gross Asset Value (net of any Liabilities that the Partnership assumes or takes subject to) of any Contributed Property contributed by such Partner to the capital of the Partnership; such Partner’s distributive share of Net Income; and any other items in the nature of income or gain that are allocated to such Partner pursuant to Article 6 , but excluding tax items described in Regulations Section 1.704-1(b)(4)(i); and

(2) Debited with the amount of cash distributed to such Partner pursuant to the provisions of this Agreement; the Gross Asset Value (net of any Liabilities that such Partner assumes or takes subject to) of any Partnership property distributed to such Partner pursuant to any provision of this Agreement; such Partner’s distributive share of Net Loss; and any other items in the nature of expenses or losses that are allocated to such Partner pursuant to Article 6 , but excluding tax items described in Regulations Section 1.704-1(b)(4)(i).

B. In the event that any or all of a Partner’s Partnership Units are transferred within the meaning of Regulations Section 1.704-1(b)(2)(iv)(l), the transferee shall succeed to the Capital Account of the transferor to the extent that it relates to the Partnership Units so transferred.

C. In the event that the Gross Asset Values of Partnership assets are adjusted pursuant to the definition of “Gross Asset Value,” the Capital Accounts of the Partners shall be adjusted to reflect the aggregate net adjustments as if the Partnership sold all of its Properties for their fair market values and recognized gain or loss for federal income tax purposes equal to the amount of such aggregate net adjustment.

 

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D. Except as required by law, no Limited Partner shall be liable for any deficit in its Capital Account or be obligated to return any distributions of any kind received from the Partnership.

E. The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Regulations Section 1.704-1(b), and shall be interpreted and applied as provided in the Regulations.

Section 4.7 No Preemptive Rights

Except to the extent expressly granted by the Partnership pursuant to another agreement, no Person including, without limitation, any Partner or Assignee, shall have any preemptive, preferential or other similar right with respect to (i) capital contributions or loans to the Partnership or (ii) the issuance or sale of any Partnership Units or other Partnership Interests.

ARTICLE 5

DISTRIBUTIONS

Section 5.1 Requirement and Characterization of Distributions

A. Subject to Article 13 , the other provisions of this Article 5 and the rights and preferences of any additional class or series of Partnership Units established pursuant to this Agreement, the General Partner shall cause the Partnership to distribute at such times as are determined by the General Partner all, or such portion as the General Partner may in its sole discretion determine, of the available cash generated by the Partnership to the Partners who are Partners on the applicable record date with respect to such distribution in accordance with their respective Percentage Interests of Limited Partnership Interests on the applicable record date.

B. Unless otherwise expressly provided for herein or in an agreement at the time a new class of Partnership Interests is created in accordance with Article 4 , no Partnership Interest shall be entitled to a distribution in preference to any other Partnership Interest. The General Partner shall take such reasonable efforts, as determined by it in its sole and absolute discretion and consistent with the qualification of MGP as a REIT, to cause the Partnership to distribute sufficient amounts, in accordance with this Section 5.1 , to enable MGP to pay shareholder dividends or distributions that will (i) satisfy all actions or omissions as may be necessary (including making appropriate distributions from time to time) to permit MGP and, where applicable, each of its respective Subsidiaries to qualify or continue to qualify as a REIT within the meaning of Section 856 et seq . of the Code, as such provisions may be amended from time to time, or the corresponding provisions of succeeding law (“ REIT Requirements ”) and (ii) avoid any federal income or excise tax Liability of MGP.

Section 5.2 Distributions in Kind

No right is given to any Partner to demand and receive property of the Partnership, except as set forth in Section 8.6 . No distribution of any property of the Partnership

 

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other than cash shall be made except following the occurrence of a Liquidating Event and in accordance with Article 13 .

Section 5.3 Distributions upon Liquidation

Proceeds from a Terminating Capital Transaction shall be distributed to the Partners in accordance with Section 13.2 .

ARTICLE 6

ALLOCATIONS

Section 6.1 Timing and Amount of Allocations of Net Income and Net Loss

Net Income and Net Loss of the Partnership shall be determined and allocated with respect to each Partnership Year as of the end of each such year. Subject to the other provisions of this Article 6 , an allocation to a Partner of a share of Net Income or Net Loss shall be treated as an allocation of the same share of each item of income, gain, loss or deduction that is taken into account in computing Net Income or Net Loss.

Section 6.2 General Allocations

Except as otherwise provided in this Article 6 , Net Income and Net Loss of the Partnership (and each item thereof) for each Partnership Year shall be allocated to each of the Partners holding the same class of Partnership Interests in accordance with their respective Percentage Interest of such class. If any Partner’s Percentage Interest “varies” during a taxable year within the meaning of Regulations Section 1.706-4(a)(1), then for purposes of making such allocations, a method, convention or additional extraordinary item, each as permitted under Regulations Section 1.706-4, shall be selected by agreement of all the Partners which selection shall be set forth in a dated, written statement maintained with the Partnership’s books and records. A selection shall be considered made by agreement of all the Partners for purposes hereof and within the meaning of Regulations Section 1.706-4(f) if the General Partner provides notice of its intended selection to the Limited Partners within a reasonable amount of time prior to the date on which the Partnership’s tax return for the relevant taxable year is due and a majority of the Limited Partners and each Limited Partner impacted by such election consent to the selection, such consent not to be unreasonably withheld. The General Partner is authorized to modify the allocations in this Section 6.2 and amend such provisions (including the defined terms used therein) in such manner as the General Partner determines is necessary or appropriate to reflect the issuance of additional series or classes of Partnership Interests pursuant to Sections 4.3 or 4.4 . Any such modification may be made pursuant to the certificate of designations or similar instrument establishing such new class or series.

Section 6.3 Regulatory Allocations

Notwithstanding the foregoing provisions of this Article 6 , the following provisions shall apply:

 

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A. Minimum Gain Chargeback . A Partner shall not receive an allocation of any Partnership deduction that would result in total loss allocations attributable to Nonrecourse Liabilities in excess of such Partner’s share of Minimum Gain (as determined under Regulations Section 1.704-2(g)). If the Partnership makes a distribution allocable to the proceeds of a Nonrecourse Liability, in accordance with Regulations Section 1.704-2(h), the distribution will be treated as allocable to an increase in Partnership Minimum Gain to the extent the increase results from encumbering Partnership property with aggregate Nonrecourse Liabilities that exceed the property’s adjusted tax basis. If there is a net decrease in Partnership Minimum Gain for a Partnership Year, in accordance with Regulations Section 1.704-2(f) and the exceptions contained therein, the Partners shall be allocated items of Partnership income and gain for such Partnership Year (and, if necessary, for subsequent Partnership Years) equal to the Partners’ respective shares of the net decrease in Minimum Gain within the meaning of Regulations Section 1.704-2(g)(2). The items to be allocated pursuant to this Section 6.3.A shall be determined in accordance with Regulations Section 1.704-2(f) and (j).

B. Partner Nonrecourse Deductions; Partner Minimum Gain Chargeback . Any item of Partner Nonrecourse Deduction with respect to a Partner Nonrecourse Debt shall be allocated to the Partner or Partners who bear the economic risk of loss for such Partner Nonrecourse Debt in accordance with Regulations Section 1.704-2(i)(1). If the Partnership makes a distribution allocable to the proceeds of a Partner Nonrecourse Debt, in accordance with Regulations Section 1.704-2(i)(6) the distribution will be treated as allocable to an increase in Partner Minimum Gain to the extent the increase results from encumbering Partnership property with aggregate Partner Nonrecourse Debt that exceeds the property’s adjusted tax basis. Subject to Section 6.2 , but not withstanding any other provision of this Agreement, in the event that there is a net decrease in Partner Nonrecourse Debt Minimum Gain for a Partnership Year, then after taking into account allocations pursuant to Section 6.2 , but before any other allocations are made for such taxable year, and subject to the exceptions set forth in Regulations Section 1.704-2(i)(4), each Partner with a share of Partner Nonrecourse Debt Minimum Gain at the beginning of such Partnership Year shall be allocated items of income and gain for such Partnership Year (and, if necessary, for subsequent Partnership Years) equal to such Partner’s share of the net decrease in Partner Nonrecourse Debt Minimum Gain as determined in a manner consistent with the provisions of Regulations Section 1.704-2(g)(2). The items to be so allocated pursuant to this Section 6.3.B shall be determined in accordance with Regulations Section 1.704-2(i)(4) and (j).

C. Excess Nonrecourse Liabilities . Pursuant to Regulations Section 1.752-3(a)(3), for the purpose of determining each Partner’s share of excess Nonrecourse Liabilities of the Partnership, and solely for such purpose, each Partner’s interest in Partnership profits shall be determined by any reasonable method chosen by the General Partner.

D. Limitation on Allocation of Net Loss; Qualified Income Offset . No Limited Partner shall be allocated any item of deduction or loss of the Partnership if such allocation would cause such Limited Partner’s Capital Account to become negative by more than the sum of (i) any amount such Limited Partner is obligated to restore upon liquidation of the Partnership, plus (ii) such Limited Partner’s share of the Partnership’s Minimum Gain and Partner Nonrecourse Debt Minimum Gain. An item of deduction or loss that cannot be allocated to a Limited Partner pursuant to this Section 6.3.D shall be allocated to the General Partner. For this purpose, in determining the Capital Account balance of such Limited Partner, the items

 

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described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) and (6) shall be taken into account. In the event that (a) any Limited Partner unexpectedly receives any adjustment, allocation or distribution described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5) or (6), and (b) such adjustment, allocation, or distribution causes or increases a deficit balance (net of amounts which such Limited Partner is obligated to restore or deemed obligated to restore under Regulations Section 1.704-2(g)(1) and 1.704-2(i)(5) and determined after taking into account any adjustments, allocations, or distributions described in Regulations Section 1.704-1(b)(2)(ii)(d)(4), (5), or (6) that, as of the end of the Partnership Year, reasonably are expected to be made to such Limited Partner) in such Limited Partner’s Capital Account as of the end of the Partnership Year to which such adjustment, allocation, or distribution relates, then items of Partnership income and gain (consisting of a pro rata portion of each item of income or gain) for such Partnership Year and each subsequent Partnership Year shall be allocated to such Limited Partner until such deficit balance or increase in such deficit balance, as the case may be, has been eliminated. In the event that this Section 6.3.D and Section 6.3.A and/or B apply, Section 6.3.A and/or B shall be applied prior to this Section 6.3.D .

E. Capital Account Deficits . In the event any Partner has a deficit Capital Account at the end of any Partnership Year which is in excess of the amount such Partner is obligated to restore pursuant to the penultimate sentences of Regulations Sections 1.704-2(g)(1) and 1.704-2(i)(5), such Partner shall be specially allocated items of Partnership income and gain in the amount of such excess as quickly as possible; provided , that an allocation pursuant to this Section 6.3.E shall be made only if and to the extent that such Partner would have a deficit Capital Account in excess of such amount after all other allocations provided for under this Agreement have been made as if this Section 6.3.E and Section 6.3.D were not in this Agreement.

F. Curative Allocation . The Regulatory Allocations shall be taken into account in allocating other items of income, gain, loss and deduction among the Partners so that, to the extent possible, the cumulative net amount of allocations of Partnership items under this Section 6.3 shall be equal to the net amount that would have been allocated to each Partner if the Regulatory Allocations had not been made. This Section 6.3.F is intended to minimize to the extent possible and to the extent necessary any economic distortions which may result from application of the Regulatory Allocations and shall be interpreted in a manner consistent therewith. For purposes hereof, “ Regulatory Allocations ” shall mean the allocations provided under this Section 6.3 (other than this Section 6.3.F ).

Section 6.4 Tax Allocations

A. Allocations Respecting Section 704(c) Revaluations . In accordance with Section 704(b) and 704(c) of the Code and the Regulations thereunder, income, gain, loss and deduction with respect to any property contributed to the capital of the Partnership shall, solely for federal income tax purposes, be allocated among the Partners on a property by property basis so as to take account of any variation between the adjusted basis of such property to the Partnership for federal income tax purposes and the initial Gross Asset Value of such property. If the Gross Asset Value of any Partnership property is adjusted as described in the definition of Gross Asset Value, subsequent allocations of income, gains or losses from taxable sales or other dispositions and deductions with respect to such asset shall take account of any variation

 

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between the adjusted basis of such asset for federal income tax purposes and the Gross Asset Value of such asset in the manner prescribed under Sections 704(b) and 704(c) of the Code and the Regulations thereunder. Any elections or other decisions relating to allocations under Section 704(c) of the Code (including under Regulations Section 1.704-3, whether to use the “traditional method,” the “traditional method with curative allocations” or the “remedial method) shall be made by the General Partner.

B. The Net Income, Net Loss, gains, deductions and credits of the Partnership (and all items thereof) for each Partnership Year shall be determined in accordance with the accounting method followed by the Partnership for federal income tax purposes.

C. Except as provided in Section 6.3.A , for income tax purposes, each item of income, gain, loss or deduction shall be allocated among the Partners in the same manner as its correlative item of “book” income, gain, loss or deduction has been allocated pursuant to this Article 6 .

ARTICLE 7

MANAGEMENT AND OPERATIONS OF BUSINESS

Section 7.1 Management

A. Except as otherwise expressly provided in this Agreement, all management powers over the business and affairs of the Partnership are exclusively vested in the General Partner, and no Limited Partner shall have any right to participate in or exercise control or management power over the business and affairs of the Partnership. The General Partner may not be removed by the Limited Partners with or without cause, except with the consent of the General Partner. In addition to the powers now or hereafter granted a general partner of a limited partnership under applicable law or which are granted to the General Partner under any other provision of this Agreement, the General Partner, subject to the other provisions of this Agreement, including, without limitation, Section 7.3 , shall have full power and authority to do all things deemed necessary or desirable by it to conduct the business of the Partnership, to exercise all powers set forth in Section 3.2 and to effectuate the purposes set forth in Section 3.1 , including, without limitation:

(1) the making of any expenditures, the lending or borrowing of money (including, without limitation, making prepayments on loans and borrowing money to permit the Partnership to make distributions to its Partners in such amounts as will permit MGP (so long as MGP has determined to qualify as a REIT) to avoid the incurrence of any federal income tax (including, for this purpose, any excise tax pursuant to Section 4981 of the Code) and to make distributions to its shareholders sufficient to permit MGP to maintain REIT status), the assumption or guarantee of, or other contracting for, indebtedness and other Liabilities, the issuance of evidences of indebtedness (including the securing of same by mortgage, deed of trust or other lien or encumbrance on the Partnership’s assets) and the incurring of any obligations it deems necessary for the conduct of the activities of the Partnership;

 

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(2) the making of tax, regulatory and other filings, or rendering of periodic or other reports to governmental or other agencies having jurisdiction over the business or assets of the Partnership;

(3) the acquisition, disposition, mortgage, pledge, encumbrance, hypothecation or exchange of any or all of the assets of the Partnership or the merger or other combination of the Partnership with or into another entity;

(4) the use of the assets of the Partnership (including cash on hand) for any purpose consistent with the terms of this Agreement, including the financing of the conduct of operations of MGP or the Partnership; the lending of funds to other Persons (including MGP, any Subsidiary or any Affiliate); the repayment or guarantee of obligations and the making of capital contributions;

(5) the negotiation, execution, and performance of any contracts, leases, conveyances or other instruments that the General Partner considers useful or necessary to the conduct of the Partnership’s operations or the implementation of the General Partner’s powers under this Agreement;

(6) the distribution of Partnership cash or other Partnership assets in accordance with this Agreement;

(7) the selection, employment, retention and dismissal of employees of the Partnership and agents, outside attorneys, accountants, consultants and contractors of the Partnership, the determination of their compensation and other terms of employment or hiring, including waivers of conflicts of interest and the payment of their expenses and compensation out of the Partnership’s assets, and the creation and operation of employee benefit plans, employee programs and employee practices;

(8) the maintenance of such insurance (including, without limitation, directors and officers insurance) for the benefit of the Partnership, the Partners or any other Person as it deems necessary or appropriate;

(9) the formation of, or acquisition of an interest in, and the contribution of property to, any further limited or general partnerships, joint ventures or other relationships that it deems desirable (including, without limitation, the acquisition of interests in, and the contributions of property to any Subsidiary and any other Person in which it has an equity investment from time to time); provided , that as long as MGP has determined to continue to qualify as a REIT, the Partnership may not engage in any such formation, acquisition or contribution that would be reasonably likely to cause MGP to fail to qualify as a REIT without the consent of MGP;

(10) the control of any matters affecting the rights and obligations of the Partnership, including the bringing and defending of actions at law or in equity and otherwise engaging in the conduct of litigation, arbitration or mediation and the incurring of legal expenses and the settlement of claims and litigation, and the indemnification of any Person against Liabilities and contingencies to the extent permitted by law;

 

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(11) the undertaking of any action in connection with the Partnership’s direct or indirect investment in any Person;

(12) the entering into of agreements with any Affiliates of the Partnership to render services to the Partnership or any Subsidiary or Affiliate;

(13) subject to the other provisions in this Agreement, the determination of the fair market value of any Partnership property distributed in kind using such reasonable method of valuation as it may adopt; provided , that such methods are otherwise consistent with requirements of this Agreement;

(14) the management, operation, leasing, landscaping, repair, alteration, demolition or improvement of any real property or improvements owned by the Partnership or any Subsidiary of the Partnership or any Person in which the Partnership has made a direct or indirect equity investment;

(15) holding, managing, investing and reinvesting cash and other assets of the Partnership;

(16) the collection and receipt of revenues and income of the Partnership;

(17) the exercise, directly or indirectly through any attorney-in-fact acting under a general or limited power of attorney, of any right, including the right to vote, appurtenant to any asset or investment held by the Partnership;

(18) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of or in connection with any Subsidiary of the Partnership or any other Person in which the Partnership has a direct or indirect interest, or jointly with any such Subsidiary or other Person;

(19) the exercise of any of the powers of the General Partner enumerated in this Agreement on behalf of any Person in which the Partnership does not have an interest pursuant to contractual or other arrangements with such Person;

(20) the maintenance of the Partnership’s books and records; and

(21) the making, execution and delivery of any and all deeds, leases, notes, deeds to secure debt, mortgages, deeds of trust, security agreements, conveyances, contracts, guarantees, warranties, indemnities, waivers, releases or legal instruments or agreements in writing necessary or appropriate in the judgment of the General Partner for the accomplishment of any of the powers of the General Partner enumerated in this Agreement.

B. Each of the Limited Partners agrees that the General Partner is authorized to execute, deliver and perform the above-mentioned agreements and transactions on behalf of the Partnership without any further act, approval or vote of the Partners, notwithstanding any other provisions of this Agreement (except as provided in Section 7.3 ), the Act or any applicable law, rule or regulation. The execution, delivery or performance by the General Partner or the

 

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Partnership of any agreement authorized or permitted under this Agreement shall not constitute a breach by the General Partner of any duty that the General Partner may owe the Partnership or the Limited Partners or any other Persons under this Agreement or of any duty stated or implied by law or equity.

C. At all times from and after the date hereof, the General Partner may cause the Partnership to obtain and maintain (i) casualty, Liability and other insurance on the properties of the Partnership and (ii) Liability insurance for the Indemnities hereunder.

D. At all times from and after the date hereof, the General Partner may cause the Partnership to establish and maintain working capital reserves in such amounts as the General Partner, in its sole and absolute discretion, deems appropriate and reasonable from time to time.

E. Except as provided in this Agreement with respect to the qualification of MGP as a REIT, and as may be provided in a separate written agreement between the Partnership and a Limited Partner, in exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including the General Partner) of any action taken by the General Partner. Except as may be provided in a separate written agreement between the Partnership and a Limited Partner, the General Partner and the Partnership shall not have Liability to a Partner under any circumstances as a result of an income tax Liability incurred by such Limited Partner as a result of an action (or inaction) by the General Partner pursuant to its authority under this Agreement.

Section 7.2 Certificate of Limited Partnership

To the extent that such action is determined by the General Partner to be reasonable and necessary or appropriate, the General Partner shall file amendments to and restatements of the Certificate and do all the things to maintain the Partnership as a limited partnership (or a partnership in which the limited partners have limited Liability) under the laws of the State of Delaware and each other state, the District of Columbia or other jurisdiction, in which the Partnership may elect to do business or own property. Subject to the terms of Section 8.5 , the General Partner shall not be required, before or after filing, to deliver or mail a copy of the Certificate or any amendment thereto to any Limited Partner. The General Partner shall use all reasonable efforts to cause to be filed such other certificates or documents as may be reasonable and necessary or appropriate for the formation, continuation, qualification and operation of a limited partnership (or a partnership in which the limited partners have limited Liability) in the State of Delaware, any other state, or the District of Columbia or other jurisdiction, in which the Partnership may elect to do business or own property.

Section 7.3 Restrictions on General Partner’s Authority

A. The General Partner may not take any action in contravention of an express prohibition or limitation of this Agreement, including, without limitation:

(1) taking any action that would make it impossible to carry on the ordinary business of the Partnership, except as otherwise provided in this Agreement;

 

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(2) possessing Partnership property, or assigning any rights in specific Partnership property, for other than a Partnership purpose except as otherwise provided in this Agreement;

(3) admitting a Person as a Partner, except as otherwise provided in this Agreement;

(4) performing any act that would subject a Limited Partner to Liability as a general partner in any jurisdiction or any other personal Liability except as provided herein or under the Act without the consent of such Limited Partner; or

(5) entering into any contract, mortgage, loan or other agreement that expressly prohibits or restricts MGP or the Partnership from performing their respective obligations under this Agreement in connection with a Redemption or prohibits or restricts the ability of a Limited Partner to exercise its rights to a Redemption in full, except with the written consent of such Limited Partner; provided , that any agreement that allows for the settlement of a redemption in the form of equity interests shall not be deemed to prohibit or restrict MGP or the Partnership from performing their respective obligations under this Agreement in connection with a Redemption or prohibit or restrict the ability of a Limited Partner to exercise its rights to a Redemption in full.

B. Without the prior Consent of the Limited Partners, neither the General Partner nor the Partnership may engage in, cause or permit at any time:

(1) any voluntary withdrawal of the General Partner as general partner;

(2) any change in any election relating to the tax status of the Partnership or MGP, including, without limitation, the status of MGP as a REIT;

(3) any admission into the Partnership of any Additional or Substitute General Partners, except pursuant to and in accordance with Article 11 or Article 12 ;

C. Notwithstanding Section 7.3.B , but subject to Section 7.3.D , the General Partner shall have the power to amend this Agreement in any manner deemed necessary or desirable in the sole discretion of the General Partner, including, without limitation, to implement the following purposes:

(1) to reflect the issuance of additional Partnership Interests pursuant to Section 4.3.C or the admission, substitution, termination or withdrawal of Partners in accordance with Articles 11 and 12 ; and

(2) permit and reflect (a) a conversion of the Partnership and MGP from an “UPREIT” structure to a “DownREIT” structure, or (b) such other transactions as the General Partner may determine are necessary or desirable, including transactions whereby MGP will hold assets outside of the Partnership, which in the case of either (a) or (b) may involve, and the General Partner shall be permitted to make, among other things, modifications to the Conversion Factor.

 

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The General Partner will provide notice to the Limited Partners of any action under this Section 7.3.C .

D. Notwithstanding Section 7.3.B , 7.3.C , and 14.1 , this Agreement shall not be amended with respect to any Partner adversely affected, and no action may be taken by the General Partner, without the Consent of such Partner adversely affected if such amendment or action would (i) convert a Limited Partner’s interest in the Partnership into a general partner’s interest (except as the result of the General Partner acquiring such interest), (ii) modify the limited Liability of a Limited Partner, (iii) alter rights of the Partner to receive distributions pursuant to Article 5 or Section 13.2.A(3) or the allocations specified in Article 6 (except as permitted pursuant to Section 4.3 and Section 7.3.C ), (iv) materially alter or modify the rights of Redemption or the REIT Shares Amount as set forth in Section 8.6 and related definitions thereof, or (v) except as necessary in accordance with Section 7.3.C(2) above, amend this Section 7.3.D ; provided , that if all holders of Partnership Units of the same class or series are adversely affected on a uniform or pro rata basis, this Agreement may be amended with respect to such Partners by the consent of Partners holding in the aggregate Percentage Interests of such class or series that are greater than fifty percent (50%) of the aggregate Percentage Interests of such class or series held by all Partners. Further, no amendment may alter the restrictions on the General Partner’s authority set forth elsewhere in this Section 7.3 without the Consent specified in such section. This Section 7.3D does not require unanimous consent of all Partners adversely affected unless the amendment is to be effective against all Partners adversely affected (subject to the provisions of this Section 7.3.D ).

Section 7.4 Reimbursement of the General Partner and MGP

A. Except as provided in this Section 7.4 and elsewhere in this Agreement (including the provisions of Articles 5 and 6 regarding distributions, payments and allocations to which it may be entitled), the General Partner shall not be compensated for its services as general partner of the Partnership.

B. The General Partner and MGP shall each be reimbursed on a monthly basis for all expenses each incurs relating to the operation of, or for the benefit of, the Partnership or MGP, as applicable. The Limited Partners acknowledge that the General Partner’s sole business is the ownership of interests in and operation of the Partnership and that such expenses are incurred for the benefit of the Partnership. Such reimbursements shall be in addition to any reimbursement to the General Partner or MGP as a result of indemnification pursuant to Section 7.7 .

C. If and to the extent any reimbursements to the General Partner or MGP pursuant to this Section 7.4 constitute gross income of the General Partner (as opposed to the repayment of advances made by the General Partner or MGP on behalf of the Partnership), such amounts shall constitute guaranteed payments within the meaning of Section 707(c) of the Code, shall be treated consistently therewith by the Partnership and all Partners, and shall not be treated as distributions for purposes of computing the Partners’ Capital Accounts.

 

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Section 7.5 Outside Activities of the General Partner

A. The General Partner, MGP and any Affiliates of the General Partner or MGP may acquire Limited Partnership Interests and shall be entitled to exercise all rights of a Limited Partner relating to such Limited Partnership Interests.

B. Without the Consent of the Limited Partners the General Partner shall not, directly or indirectly, enter into or conduct any business, other than in connection with the ownership, acquisition and disposition of Partnership Interests as a General Partner and the management of the business of the Partnership and such activities as are incidental to the same. Without the Consent of the Limited Partners, the General Partner shall not, directly or indirectly, participate in or otherwise acquire (i) any interest in any real or personal property or (ii) any equity securities or other interests (or securities convertible into or exercisable for such equity securities or other interests) of any Person other than the Partnership, except its General Partner Interest and such bank accounts, similar instruments or other short-term investments as each deems necessary to carry out its responsibilities contemplated under this Agreement.

C. In the event MGP exercises its rights under the MGP LLC Agreement to purchase REIT Common Shares (such REIT Common Shares, the “ Repurchased REIT Shares ”), then the purchase price paid by MGP for such Repurchased REIT Shares and any other expenses incurred by MGP in connection with such purchase shall be considered expenses of the Partnership and shall be advanced to MGP or reimbursed to MGP, subject, to the extent that the Repurchased REIT Shares are REIT Class A Shares, to the condition that the General Partner shall cause the Partnership to redeem a number of Common Units held by MGP equal to the REIT Shares Amount.

Section 7.6 Contracts with Affiliates

A. The Partnership may lend or contribute to Persons in which it has an equity investment, and such Persons may borrow funds from the Partnership, on terms and conditions established on the Partnership’s behalf in the sole and absolute discretion of the General Partner. Any Person that has an equity investment in the Partnership may lend or contribute to the Partnership, and the Partnership may borrow funds from such Person, on terms and conditions established on the Partnership’s behalf in the sole and absolute discretion of the General Partner. The foregoing authority shall not create any right or benefit in favor of any Person.

B. Except as provided in Section 7.5.B and subject to Section 7.3.B , the Partnership may transfer assets to joint ventures, other partnerships, corporations or other business entities in which it is or thereby becomes a participant upon such terms and determined by the General Partner and subject to such conditions as are consistent with this Agreement and applicable law.

C. The General Partner, in its sole and absolute discretion and without the approval of the Limited Partners, may propose and adopt on behalf of the Partnership employee benefit plans funded by the Partnership for the benefit of employees of the General Partner, the Partnership, Subsidiaries of the Partnership or any Affiliate of any of them in respect of services

 

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performed, directly or indirectly, for the benefit of the Partnership, the General Partner or any of the Partnership’s Subsidiaries. The General Partner also is expressly authorized to cause the Partnership to issue to MGP Common Units corresponding to REIT Class A Shares issued by MGP pursuant to any Stock Plan or any similar or successor plan and to repurchase such Common Units from MGP to the extent necessary to permit MGP to repurchase such REIT Class A Shares in accordance with such plan.

D. The General Partner is expressly authorized to enter into, in the name and on behalf of the Partnership, a right of first opportunity arrangement and other conflict avoidance agreements with various Affiliates of the Partnership and the General Partner, on such terms as the General Partner, in its sole and absolute discretion, believes are advisable.

Section 7.7 Indemnification

A. To the fullest extent permitted by law but subject to the limitations expressly provided in this Agreement, all Indemnitees shall be indemnified and held harmless by the Partnership from and against any and all losses, claims, damages, Liabilities, joint or several, expenses (including legal fees and expenses), judgments, fines, penalties, interest, settlements or other amounts arising from any and all threatened, pending or completed claims, demands, actions, suits or proceedings, whether civil, criminal, administrative or investigative, and whether formal or informal and including appeals, in which any Indemnitee may be involved, or is threatened to be involved, as a party or otherwise, by reason of its status as an Indemnitee and acting (or refraining to act) in such capacity on behalf of or for the benefit of the Partnership; provided , that the Indemnitee shall not be indemnified and held harmless pursuant to this Agreement if there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Agreement, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was unlawful.

B. To the fullest extent permitted by law, expenses (including legal fees and expenses) incurred by an Indemnitee who is indemnified pursuant to Section 7.7.A for appearing at, participating in or defending any claim, demand, action, suit or proceeding shall, from time to time, be advanced by the Partnership prior to a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter for which the Indemnitee is seeking indemnification pursuant to this Section 7.7 , the Indemnitee is not entitled to be indemnified upon receipt by the Partnership of any undertaking by or on behalf of the Indemnitee to repay such amount if it shall be ultimately determined that the Indemnitee is not entitled to be indemnified as authorized by this Section 7.7 .

C. The indemnification provided by this Section 7.7 shall be in addition to any other rights to which an Indemnitee may be entitled under any agreement, as a matter of law, in equity or otherwise, both as to actions in the Indemnitee’s capacity as an Indemnitee and as to actions in any other capacity, and shall continue as to an Indemnitee who has ceased to serve in such capacity and shall inure to the benefit of the heirs, successors, assigns and administrators of such Indemnitee.

 

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D. The Partnership may purchase and maintain insurance, on behalf of the Indemnitees and such other Persons as the General Partner shall determine, against any Liability that may be asserted against, or expense that may be incurred by, such Person in connection with the Partnership’s activities or such Person’s activities on behalf of the Partnership, regardless of whether the Partnership would have the power to indemnify such Person against such Liability under the provisions of this Agreement.

E. For purposes of this Section 7.7 , the Partnership shall be deemed to have requested that an Indemnitee serve as fiduciary of an employee benefit plan whenever the performance by such Indemnitee of its duties to the Partnership also imposes duties on, or otherwise involves services by, such Indemnitee to the plan or participants or beneficiaries of the plan; excise taxes assessed on an Indemnitee with respect to an employee benefit plan pursuant to applicable law shall constitute “fines” as such term is used in Section 7.7.A ; and any action taken or omitted by such Indemnitee with respect to any employee benefit plan in the performance of such Indemnitee’s duties for a purpose reasonably believed by such Indemnitee to be in the best interest of the participants and beneficiaries of such plan shall be deemed to be for a purpose that is in the best interests of the Partnership.

F. In no event may an Indemnitee subject the Limited Partners to personal Liability by reason of the indemnification provisions set forth in this Agreement.

G. An Indemnitee shall not be denied indemnification in whole or in part under this Section 7.7 solely because such Indemnitee had an interest in the transaction with respect to which such indemnification applies.

H. The provisions of this Section 7.7 are for the benefit of the Indemnitees and their heirs, successors, assigns, executors and administrators and shall not be deemed to create any rights for the benefit of any other Persons. No amendment, modification or repeal of this Section 7.7 or any provision hereof shall in any manner terminate, reduce or impair the right of any past, present or future Indemnitee to be indemnified by the Partnership, nor the obligations of the Partnership to indemnify any such Indemnitee under and in accordance with the provisions of this Section 7.7 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted.

I. If and to the extent any reimbursements to the General Partner or MGP pursuant to this Section 7.7 constitute gross income of the General Partner or MGP (as opposed to the repayment of advances made by the General Partner or MGP on behalf of the Partnership) such amounts shall constitute guaranteed payments within the meaning of Section 707(c) of the Code, shall be treated consistently therewith by the Partnership and all Partners, and shall not be treated as distributions for purposes of computing the Partners’ Capital Accounts.

J. This Section 7.7 is intended solely to define the parties’ rights and obligations concerning indemnification, and this Section 7.7 is not intended to impose any new or different obligations or standards of conduct on any Indemnitee.

 

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Section 7.8 Liability of Indemnitees

A. Notwithstanding anything to the contrary set forth in this Agreement, no Indemnitee shall be liable for monetary damages to the Partnership, any Partner, any Group Members, any other Persons who acquire an interest in a Partnership Unit or any other Person who is bound by this Agreement for losses sustained or Liabilities incurred as a result of any act or omission of an Indemnitee unless there has been a final and non-appealable judgment entered by a court of competent jurisdiction determining that, in respect of the matter in question, the Indemnitee acted in bad faith or engaged in fraud, willful misconduct or, in the case of a criminal matter, acted with knowledge that the Indemnitee’s conduct was criminal. The Partners, any other Person who acquires an interest in a Partnership Unit and any other Person who is bound by this Agreement, each on their own behalf and on behalf of the Partnership, waives any and all rights to claim punitive damages or damages based upon the federal or state income taxes paid or payable by any such Partner or other Person.

B. The Limited Partners expressly acknowledge that the General Partner is acting for the benefit of the Partnership, the Limited Partners and MGP’s shareholders collectively, that the General Partner is under no obligation to give priority to the separate interests of the Limited Partners or the General Partner’s shareholders (including, without limitation, the tax consequences to Limited Partners or Assignees or to shareholders) in deciding whether to cause the Partnership to take (or decline to take) any actions and that the General Partner shall not be liable to the Partnership or to any Partner for monetary damages for losses sustained, Liabilities incurred, or benefits not derived by Limited Partners in connection with such decisions so long as the General Partner acted in good faith. A determination, other action or failure to act by the General Partner will be deemed to be in good faith unless the applicable party believed such determination, other action or failure to act was adverse to the interests of the Partnership. In any proceeding brought by the Partnership, any Partner, any Person who acquires an interest in a Partnership Unit or any other Person who is bound by this Agreement challenging such action, determination or failure to act, the Person bringing or prosecuting such proceeding shall have the burden of proving that such determination, action or failure to act was not in good faith.

C. Subject to its obligations and duties as General Partner set forth in Section 7.1.A , the General Partner may exercise any of the powers granted to it by this Agreement and perform any of the duties imposed upon it hereunder either directly or by or through its agents. The General Partner shall not be responsible for any misconduct or negligence on the part of any such agent appointed by the General Partner in good faith.

D. To the extent that, at law or in equity, an Indemnitee has duties and Liabilities relating thereto to the Partnership, any Partner, any other Group Members, any other Person who acquires an interest in a Partnership Unit or any other Person who is bound by this Agreement, any Indemnitee acting in connection with the Partnership’s business or affairs shall not be liable, to the fullest extent permitted by law, to the Partnership, any Partner, any Group Member, any other Person who acquires an interest in a Partnership Unit or any other Person who is bound by this Agreement for its reliance on the provisions of this Agreement.

 

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E. Any amendment, modification or repeal of this Section 7.8 or any provision hereof shall be prospective only and shall not in any way affect the limitations on the Liability of the Indemnitees under this Section 7.8 as in effect immediately prior to such amendment, modification or repeal with respect to claims arising from or relating to matters occurring, in whole or in part, prior to such amendment, modification or repeal, regardless of when such claims may arise or be asserted, and provided such Person became an Indemnitee hereunder prior to such amendment, modification or repeal.

F. This Section 7.8 is intended merely to exculpate Indemnitees from Liability, and is not intended to impose any new or different duties or obligations on any Indemnitee.

Section 7.9 Modification of Duties

Except as expressly set forth in this Agreement, to the fullest extent permitted by law, no Indemnitee shall have any duties or Liabilities, including any fiduciary duties, to the Partnership, any Partner, any other Person who acquires an interest in a Partnership Unit or any other Person who is bound by this Agreement. The provisions of this Agreement, to the extent that they restrict or otherwise modify or eliminate the duties and Liabilities, including fiduciary duties, of an Indemnitee otherwise existing at law or in equity, are expressly agreed and approved by the General Partner and the Partners, any other Group Member, any other Person who acquires an interest in a Partnership Unit or any other Person who is bound by this Agreement to replace such other duties and Liabilities of an Indemnitee.

Section 7.10 Other Matters Concerning the General Partner

A. The General Partner may rely and shall be protected in acting or refraining from acting upon any resolution, certificate, statement, instrument, opinion, report, notice, request, consent, order, bond, debenture, or other paper or document believed by it to be genuine and to have been signed or presented by the proper party or parties.

B. The General Partner may consult with legal counsel, accountants, appraisers, management consultants, investment bankers and other consultants and advisers selected by it, and any act taken or omitted to be taken in reliance upon the advice or opinion of such Persons as to matters which such General Partner reasonably believes to be within such Person’s professional or expert competence shall be conclusively presumed to have been done or omitted in good faith and in accordance with such advice or opinion.

C. The General Partner shall have the right, in respect of any of its powers or obligations hereunder, to act through any of its duly authorized officers and a duly appointed attorney or attorneys-in-fact. Each such attorney shall, to the extent provided by the General Partner in the power of attorney, have full power and authority to do and perform all and every act and duty which is permitted or required to be done by the General Partner hereunder.

D. Notwithstanding any other provisions of this Agreement or any nonmandatory provision of the Act, any action of the General Partner on behalf of the Partnership or any decision of the General Partner to refrain from acting on behalf of the Partnership, undertaken in the good faith belief that such action or omission is necessary or

 

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advisable in order (i) to protect the ability of MGP to continue to qualify as a REIT or (ii) to avoid MGP incurring any taxes under Section 857 or Section 4981 of the Code, is expressly authorized under this Agreement and is deemed approved by all of the Limited Partners.

Section 7.11 Title to Partnership Assets

Title to Partnership assets, whether real, personal or mixed and whether tangible or intangible, shall be deemed to be owned by the Partnership as an entity, and no Partners, individually or collectively, shall have any ownership interest in such Partnership assets or any portion thereof. Title to any or all of the Partnership assets may be held in the name of the Partnership, the General Partner or one or more nominees, as the General Partner may determine, including Affiliates of the General Partner. The General Partner hereby declares and warrants that any Partnership assets for which legal title is held in the name of the General Partner or any nominee or Affiliate of the General Partner shall be held by the General Partner for the use and benefit of the Partnership in accordance with the provisions of this Agreement; provided , however , that the General Partner shall use its commercially reasonable efforts to cause beneficial and record title to such assets to be vested in the Partnership as soon as reasonably practicable. All Partnership assets shall be recorded as the property of the Partnership in its books and records, irrespective of the name in which legal title to such Partnership assets is held.

Section 7.12 Reliance by Third Parties

Notwithstanding anything to the contrary in this Agreement, any Person dealing with the Partnership shall be entitled to assume that the General Partner has full power and authority to encumber, sell or otherwise use in any manner any and all assets of the Partnership and to enter into any contracts on behalf of the Partnership, and such Person shall be entitled to deal with the General Partner as if it were the Partnership’s sole party in interest, both legally and beneficially. Each Limited Partner hereby waives any and all defenses or other remedies that may be available against such Person to contest, negate or disaffirm any action of the General Partner in connection with any such dealing. In no event shall any Person dealing with the General Partner or its representatives be obligated to ascertain that the terms of this Agreement have been complied with or to inquire into the necessity or expedience of any act or action of the General Partner or its representatives. Each and every certificate, document or other instrument executed on behalf of the Partnership by the General Partner or its representatives shall be conclusive evidence in favor of any and every Person relying thereon or claiming thereunder that (i) at the time of the execution and delivery of such certificate, document or instrument, this Agreement was in full force and effect, (ii) the Person executing and delivering such certificate, document or instrument was duly authorized and empowered to do so for and on behalf of the Partnership and (iii) such certificate, document or instrument was duly executed and delivered in accordance with the terms and provisions of this Agreement and is binding upon the Partnership.

 

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ARTICLE 8

RIGHTS AND OBLIGATIONS OF LIMITED PARTNERS

Section 8.1 Limitation of Liability

The Limited Partners shall have no Liability under this Agreement (other than for breach thereof) except as expressly provided in this Agreement or under the Act.

Section 8.2 Management of Business

No Limited Partner or Assignee shall take part in the operations, management or control (within the meaning of the Act) of the Partnership’s business, transact any business in the Partnership’s name or have the power to sign documents for or otherwise bind the Partnership. The transaction of any such business by the General Partner, any of its Affiliates or any officer, director, employee, partner, agent or trustee of the General Partner, the Partnership or any of their Affiliates, in their capacity as such, shall not affect, impair or eliminate the limitations on the Liability of the Limited Partners or Assignees under this Agreement.

Section 8.3 Outside Activities of Unrestricted Persons

A. Each Unrestricted Person (other than the General Partner) shall have the right to engage in businesses of every type and description and other activities for profit and to engage in and possess an interest in other business ventures of any and every type or description, whether in businesses engaged in or anticipated to be engaged in by any Group Member, independently or with others, including business interests and activities in direct competition with the business and activities of any Group Member. No such business interest or activity shall constitute a breach of this Agreement or any duty otherwise existing at law, in equity or otherwise or obligation of any type whatsoever, to the Partnership, any Partner, any Group Member or any other Person who acquires an interest in a Partnership Unit or any other Person who is bound by this Agreement. None of any Group Member, any Partner or any other Person shall have any rights by virtue of this Agreement or the partnership relationship established hereby in any business ventures of any Unrestricted Person.

B. Notwithstanding anything to the contrary in this Agreement, (i) the engagement in competitive activities by any Unrestricted Person in accordance with the provisions of this Section 8.3 is hereby approved by the Partnership and all Partners, (ii) it shall be deemed not to be a breach by any Unrestricted Person of this Agreement or any duty otherwise existing at law, in equity or otherwise or obligation of any type whatsoever, to the Partnership, any Partner, any Group Member or any other Person who acquires an interest in a Partnership Unit or any other Person who is bound by this Agreement for any Unrestricted Person to engage in any business interests or activities in preference to or to the exclusion of the Partnership, any Partner or any other Group Member and (iii) the Unrestricted Persons shall have no obligation hereunder or as a result of any duty otherwise existing at law, in equity or otherwise or obligation of any type whatsoever, to present business opportunities to the Partnership or any other Group Member. Notwithstanding anything to the contrary in this Agreement, the doctrine of corporate opportunity, or any analogous doctrine, shall not apply to

 

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any Unrestricted Person. No Unrestricted Person who acquires knowledge of a potential transaction, agreement, arrangement or other matter that may be an opportunity for the Partnership, shall have any duty to communicate or offer such opportunity to the Partnership, and such Unrestricted Person shall not be liable to the Partnership, any Partner or any other Person who acquires an interest in a Partnership Unit or any other Person who is bound by this Agreement for breach of this Agreement or any duty otherwise existing at law, in equity or otherwise or obligation of any type whatsoever, by reason of the fact that such Unrestricted Person pursues or acquires such opportunity for itself, directs such opportunity to another Person or does not communicate such opportunity or information to the Partnership.

Section 8.4 Return of Capital

No Limited Partner shall be entitled to the withdrawal or return of his or her Capital Contribution, except to the extent of distributions made pursuant to this Agreement or upon termination of the Partnership as provided herein and with respect to the rights of Redemption set forth in Section 8.6 . No Limited Partner or Assignee shall have priority over any other Limited Partner or Assignee either as to the return of Capital Contributions or as to profits, losses, distributions or credits, except as otherwise expressly provided in this Agreement.

Section 8.5 Rights of Limited Partners Relating to the Partnership

A. In addition to the other rights specifically set forth in this Agreement, except as limited by Section 8.5.C , and subject to such reasonable standards (including standards governing what information and documents are to be furnished and at what time and location and at whose expense) as may be established by the General Partner, each Partner is entitled to all information to which a partner in a Delaware limited partnership is entitled to have access pursuant to the Act under the circumstances and subject to the conditions therein stated.

B. The Partnership shall notify each Limited Partner in writing of any adjustment made in the Conversion Factor or the calculation of the REIT Shares Amount within ten (10) Business Days of the date such change becomes effective.

C. Notwithstanding any other provision of this Agreement, the General Partner or MGP may keep confidential from the Limited Partners, for such period of time as the General Partner of MGP reasonably determines, (i) any information that the General Partner or MGP reasonably believes to be in the nature of trade secrets or (ii) other information the disclosure of which the General Partner or MGP believes (a) is not in the best interests of the Partnership, (b) could damage the Partnership or its business or (c) the Partnership, the General Partner or MGP is required by law or by agreements with any third party to keep confidential (other than agreements with Affiliates of the General Partner the primary purpose of which is to circumvent the obligations set forth in this Section 8.5 ).

D. Representatives of the General Partner shall meet with representatives of the Limited Partners quarterly, or more frequently upon the request of any holder of Partnership Units whose Percentage Interest equals or exceeds thirty percent (30%), in order to discuss

 

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matters that Limited Partners may reasonably request, including, without limitation, the management, operations and strategy of the Partnership.

Section 8.6 Redemption Rights

A. Subject to Sections 8.6.D and 8.6.H , commencing on the date that is the first anniversary of the first day of the first full calendar month after a Limited Partner’s acquisition of Common Units, any such Limited Partner shall have the right (subject to the terms and conditions set forth herein) to require the Partnership to redeem all or a portion of the Common Units held by such Limited Partner (such Common Units being hereafter referred to as “ Tendered Units ”) in exchange for the Cash Amount (calculated as of the Specified Redemption Date) (a “ Redemption ”); provided , that no Partnership Units other than Common Units are entitled to a right of Redemption under this Agreement unless the terms of such Partnership Units so provide. Any Redemption shall be exercised pursuant to a Notice of Redemption delivered to the General Partner by the Limited Partner who is exercising the right (the “ Tendering Partner ”). The Cash Amount shall be delivered as a certified check payable, or wire transfer of immediately available funds, to the Tendering Partner within ten (10) days of the Specified Redemption Date.

B. Notwithstanding Section 8.6.A , if a Limited Partner has delivered to the General Partner a Notice of Redemption, then the General Partner shall deliver a copy of the Notice of Redemption to MGP, and the conflicts committee of the board of directors of MGP may, in its sole and absolute discretion on behalf of MGP (subject to Section 8.6.D ), determine to cause MGP to elect to acquire some or all of the Tendered Units from the Tendering Partner in exchange for the REIT Shares Amount (calculated as of the Specified Redemption Date) and, if MGP so elects, the Tendering Partner shall sell the Tendered Units to MGP in exchange for the REIT Shares Amount. In such event, the Tendering Partner shall have no right to cause the Partnership to redeem such Tendered Units for cash. MGP shall give the Tendering Partner written notice of its election (the “ REIT Shares Election ”) on or before the close of business on the fifth (5 th ) Business Day after its receipt of the Notice of Redemption, and the Tendering Partner may elect to withdraw its redemption request at any time before the close of business on the fifth (5 th ) Business Day after the Tendering Partner receives the REIT Shares Election.

C. The REIT Shares Amount, if applicable, shall be delivered as duly authorized, validly issued, fully paid and nonassessable REIT Class A Shares, free of any pledge, lien, encumbrance or restriction, other than those provided in the MGP LLC Agreement, the Securities Act, relevant state securities or blue sky laws and any applicable registration rights agreement with respect to such REIT Class A Shares entered into by the Tendering Partner.

D. Notwithstanding anything to the contrary in any other provision of this Agreement, a Limited Partner (i) shall not be entitled to effect a Redemption to the extent the ownership or right to acquire REIT Class A Shares pursuant to such exchange by such Partner on the Specified Redemption Date would cause such Partner or any other Person to violate the restrictions on ownership and transfer of REIT Common Shares set forth in the MGP LLC Agreement and (ii) shall have no rights under this Agreement to acquire REIT Common Shares which would otherwise be prohibited under the MGP LLC Agreement. To the extent any attempted Redemption or other exchange for REIT Common Shares would be in violation of this

 

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Section 8.6.D , it shall be null and void ab initio and such Partner shall not acquire any rights or economic interest in the cash otherwise payable upon such Redemption or the REIT Common Shares otherwise issuable upon such exchange.

E. Notwithstanding anything to the contrary in this Agreement (but subject to Section 8.6.D ), with respect to any Redemption or other exchange for REIT Class A Shares pursuant to this Section 8.6 :

(1) Without the consent of the General Partner, a Limited Partner may effect the Redemption right only one time in each fiscal quarter.

(2) Without the consent of the General Partner, a Limited Partner may not effect the Redemption for less than 1,000 Common Units or, if such Limited Partner holds less than 1,000 Common Units, all of the Common Units held by such Limited Partner.

(3) Without the consent of the General Partner, no Limited Partner may effect a Redemption during the period after the Partnership Record Date with respect to a distribution by the Partnership and before the record date established by MGP for a distribution to its shareholders of some or all of its portion of such distribution by the Partnership, provided , that the distribution by MGP occurs within 30 Business Days of the distribution by the Partnership.

(4) The consummation of any Redemption or other exchange for REIT Class A Shares shall be subject to the expiration or termination of the applicable waiting period, if any, under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.

(5) Each Tendering Partner shall continue to own all Common Units subject to any Redemption or other exchange for REIT Class A Shares, and be treated as a Limited Partner with respect to such Common Units for all purposes of this Agreement, until such Tendering Partner is deemed the owner of such REIT Class A Shares for all purposes, including, without limitation, rights to vote or consent, and receive dividends or distributions, under the terms of this Agreement.

F. MGP shall take all actions necessary to effect any registration of REIT Class A Shares under the Securities Act, the Exchange Act and the securities or “blue sky” laws of any state or other jurisdiction, and appropriate actions ancillary thereto, as may be required in connection with any Redemption or other exchange for REIT Class A Shares as promptly as practicable.

G. Stock Offering Funding Option .

(1) (a) Notwithstanding Sections 8.6.A or 8.6.B (but subject to Section 8.6.D ), if (i) a Limited Partner has delivered to the General Partner a Notice of Redemption with respect to a number of Excess Units that, together with any other Tendered Units that such Limited Partner agrees to treat as Excess Units (collectively, the “ Offering Units ”), exceeds $5,000,000 gross value, based on a Common Unit price equal to the Fair Market Value of a REIT Class A Share and (ii) MGP is eligible to file a registration statement under Form S-3 (or any successor form similar thereto), then either: (I) the conflicts committee of the board of

 

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directors of MGP may elect to cause MGP to cause the Partnership to redeem the Offering Units with the proceeds of an offering, whether registered under the Securities Act or exempt from such registration, underwritten, offered and sold directly to investors or through agents or other intermediaries, or otherwise distributed (a “ Stock Offering Funding ”) of a number of REIT Class A Shares (“ Offered Shares ”) equal to the REIT Shares Amount with respect to the Offering Units pursuant to the terms of this Section 8.6.G ; (II) the Partnership shall pay the Cash Amount with respect to the Excess Units pursuant to the terms of Section 8.6.A ; or (III) the conflicts committee of the board of directors of MGP may determine to cause MGP to acquire the Excess Units in exchange for the REIT Shares Amount pursuant to the terms of Section 8.6.B , but only if the Tendering Partner provides the General Partner with any representations or undertakings which MGP has determined, in its sole and absolute discretion, are sufficient to prevent a violation of the MGP LLC Agreement. MGP must provide notice of its exercise of the election described in clause (I) above to purchase the Tendered Units through a Stock Offering Funding on or before the fifth (5 th ) Business Day following its receipt of a Notice of Redemption.

(b) If the conflicts committee of the board of directors of MGP causes MGP to elect a Stock Offering Funding with respect to a Notice of Redemption, MGP may give notice (a “ Single Funding Notice ”) of such election to all Limited Partners and require that all Limited Partners elect whether or not to effect a Redemption to be funded through such Stock Offering Funding. If a Limited Partner elects to effect such a Redemption, it shall give notice thereof and of the number of Common Units to be made subject thereto in writing to the General Partner within five (5) Business Days after receipt of the Single Funding Notice, and such Limited Partner shall be treated as a Tendering Partner for all purposes of this Section 8.6.G .

(2) If the conflicts committee of the board of directors of MGP causes MGP to elect a Stock Offering Funding, on the Specified Redemption Date, the Partnership shall redeem each Offering Unit that is still a Tendered Unit on such date for cash in immediately available funds in an amount equal to the net proceeds per Offered Share received by MGP from the Stock Offering Funding, determined after deduction of underwriting discounts and commissions but no other expenses of MGP or any other Limited Partner related thereto, including, without limitation, legal and accounting fees and expenses, SEC registration fees, state “blue sky” and securities laws fees and expenses, printing expenses, FINRA filing fees, exchange listing fees and other out of pocket expenses.

(3) If the conflicts committee of the board of directors of MGP causes MGP to elect a Stock Offering Funding, the following additional terms and conditions shall apply:

(a) As soon as practicable after the conflicts committee of the board of directors of MGP causes MGP to elect to effect a Stock Offering Funding, MGP shall use its reasonable efforts to effect as promptly as possible a registration, qualification or compliance (including, without limitation, the execution of an undertaking to file post-effective amendments, appropriate qualifications under applicable “blue sky” or other state securities laws and appropriate compliance with applicable regulations issued under the Securities Act and any other governmental requirements or regulations) as would permit or facilitate the sale and distribution of the Offered Shares; provided , that if MGP shall deliver a certificate to the Tendering Partner stating that MGP’s Board of Directors has determined in its good faith judgment that such filing,

 

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registration or qualification would require disclosure of material non-public information, the disclosure of which would have a material adverse effect on MGP, then MGP may delay making any filing or delay the effectiveness of any registration or qualification for the shorter of (i) the period ending on the date upon which such information is disclosed to the public or ceases to be material or (ii) an aggregate period of ninety (90) days in connection with any Stock Offering Funding.

(b) MGP shall advise each Tendering Partner, regularly and promptly upon any request, of the status of the Stock Offering Funding process, including the timing of all filings, the selection of and understandings with underwriters, agents, dealers and brokers, the nature and contents of all communications with the SEC and other governmental bodies, the expenses related to the Stock Offering Funding as they are being incurred, the nature of marketing activities, and any other matters reasonably related to the timing, price and expenses relating to the Stock Offering Funding and the compliance by MGP with its obligations with respect thereto. MGP will have reasonable procedures whereby the Tendering Partner with the largest number of Offered Units may represent all the Tendering Partners in connection with the Stock Offering Funding (the “ Lead Tendering Partner ”) by allowing it to participate in meetings with the underwriters of the Stock Offering Funding. In addition, MGP and each Tendering Partner may, but shall be under no obligation to, enter into understandings in writing whereby the Tendering Partner will agree in advance as to the acceptability of an amount of net proceeds to be received for the Offered Shares. Furthermore, MGP shall establish pricing notification procedures with each such Tendering Partner, such that the Tendering Partner will have the maximum opportunity practicable to determine whether to withdraw from the Redemption pursuant to Section 8.6.G(3)(c) below.

(c) MGP will permit the Lead Tendering Party to participate in the pricing discussions for the Stock Offering Funding and, upon notification of the price per REIT Common Share in the Stock Offering Funding from the managing underwriter(s), in the case of a registered public offering, or lead placement agent(s), in the event of an unregistered offering, engaged by MGP in order to sell the Offered Shares, shall immediately use its reasonable efforts to notify each Tendering Partner of the price per REIT Class A Share in the Stock Offering Funding and resulting net proceeds (determined in accordance with Section 8.6.G(2) ). Each Tendering Partner shall have one hour from the receipt of such written notice (as such time may be extended by MGP) to elect to withdraw its Redemption, and Common Units with a REIT Shares Amount equal to such excluded Offered Shares shall be considered to be withdrawn from the Redemption; provided , however , that MGP shall keep each of the Tendering Partners reasonably informed as to the likely timing of delivery of its notice. If a Tendering Partner, within such time period, does not notify MGP of such Tendering Partner’s election to withdraw, then such Tendering Partner shall, except as otherwise provided in an agreement between MGP and such Tendering Partner, be deemed not to have withdrawn from the Redemption, without liability to MGP. To the extent that MGP is unable to notify any Tendering Partner, such non-notified Tendering Partner shall, except as otherwise provided in any agreement between MGP and such Tendering Partner, be deemed not to have elected to withdraw its Redemption. Each Tendering Partner whose Redemption is being funded through the Stock Offering Funding who does not withdraw shall have the right, subject to the approval of the managing underwriter(s) or placement agent(s) and restrictions of any applicable securities laws, to submit for Redemption additional Common Units in a number no greater than the number of Common Units withdrawn.

 

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If more than one Tendering Partner so elects to redeem additional Common Units, then such Common Units shall be redeemed on a pro rata basis, based on the number of additional Common Units sought to be so redeemed.

(d) MGP shall take all reasonable actions in order to effectuate the sale of the Offered Shares including, but not limited to, the entering into of an underwriting or placement agreement in customary form with the managing underwriter(s) or placement agent(s) selected for such underwriting. Notwithstanding any other provision of this Agreement, if the managing underwriter(s) or placement agent(s) advises MGP in writing that marketing factors require a limitation of the number of shares to be offered, then MGP shall so advise all Tendering Partners and the number of Common Units to be sold to MGP pursuant to the Redemption shall be allocated among all Tendering Partners in proportion, as nearly as practicable, to the respective number of Common Units as to which each Tendering Partner elected to effect a Redemption. Notwithstanding anything to the contrary in this Agreement, if MGP is also offering to sell shares for purposes other than to fund the redemption of Offering Units and to pay related expenses, then those other shares may, in MGP’s sole discretion, be given priority over any shares to be sold in the Stock Offering Funding, and any shares to be sold in the Stock Offering Funding shall be removed from the offering prior to removing shares the proceeds of which would be used for other purposes of MGP. No Offered Shares excluded from the underwriting by reason of the managing underwriter’s or placement agent’s marketing limitation shall be included in such offering.

H. Pursuant to that certain Master Lease dated as of the date hereof (the “ Master Lease ”) by and between MGM Lessee, LLC, a Delaware limited liability company (“ Tenant ”), and MGP Lessor, LLC, a Delaware limited liability company and an indirect wholly owned subsidiary of the Partnership (“ Landlord ”), Landlord is obligated upon the occurrence of a Deconsolidation Event (as defined in the Master Lease) to make a payment to Tenant or Tenant’s designee in an amount equal to the Deconsolidation Growth Capital Improvement Purchase Price (as defined in the Master Lease). The Partners agree that the General Partner will cause the Landlord to make such payment, or, if elected in the sole discretion of the General Partner, the General Partner will issue to Tenant, or Tenant’s designee, Common Units with an aggregate Fair Market Value equal to the Deconsolidation Growth Capital Improvement Purchase Price. Any such Common Units issued pursuant to this Section 8.6.H shall be freely redeemable in accordance with the terms of this Section 8.6 except that Tenant or Tenant’s designee, as applicable, may require the Partnership to redeem such Common Units immediately following the issuance thereof, or at any time thereafter, without regard to the minimum twelve (12) month ownership limitation set forth in Section 8.6.A . Tenant or Tenant’s designee, as applicable, contemporaneously with the issuance of Common Units pursuant to this Section 8.6.H shall become a party to, and have all rights under, that certain Registration Rights Agreement, dated as of the date hereof, by and among MGP, the Partnership and certain other parties thereto.

 

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ARTICLE 9

BOOKS, RECORDS, ACCOUNTING AND REPORTS

Section 9.1 Records and Accounting

The General Partner shall keep or cause to be kept at the principal office of the Partnership appropriate books and records with respect to the Partnership’s business, including, without limitation, all books and records necessary to provide to the Limited Partners any information, lists and copies of documents required to be provided pursuant to Section 9.3 . Any records maintained by or on behalf of the Partnership in the regular course of its business may be kept on, or be in the form of, any information storage device, provided , that the records so maintained are convertible into clearly legible written form within a reasonable period of time. The books of the Partnership shall be maintained, for financial and tax reporting purposes, on an accrual basis in accordance with generally accepted accounting principles.

Section 9.2 Fiscal Year

The fiscal year of the Partnership shall be the calendar year.

Section 9.3 Reports

The Partnership shall further cause to be prepared and transmitted to MGP such other reports and/or information as are necessary for MGP to determine and maintain its qualification as a REIT under the REIT Requirements, its earnings and profits derived from the Partnership, its Liability for a tax as a consequence of its Partnership Interest and distributive share of taxable income or loss and items thereof, in each case in a manner that will permit MGP to comply with its respective obligations to file federal, state and local tax returns and information returns and to provide its shareholders with tax information.

ARTICLE 10

TAX MATTERS

Section 10.1 Preparation of Tax Returns

A. Except as otherwise provided in this Agreement, the General Partner shall determine the methods to be used in the preparation of federal, state, and local income and other tax returns for the Partnership in connection with all items of income and expense, including, but not limited to, valuation of assets, the methods of Depreciation and cost recovery, credits and tax accounting methods and procedures, and all tax elections.

B. The Partnership shall timely cause to be prepared and transmitted to the Partners, federal and appropriate state and local Partnership Income Tax Schedules “K-1” or any substitute therefor, with respect to each Partnership Year on appropriate forms prescribed. The Partnership shall make reasonable efforts to prepare and submit such forms before the due date for filing federal income tax returns for the fiscal year in question (determined without

 

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extensions), and shall in any event prepare and submit such forms on or before July 15 of the year following the fiscal year in question.

Section 10.2 Tax Matters Representative

A. The General Partner (or its designee) shall be the “tax matters partner” or “partnership representative” of the Partnership within the meaning of the Code, and shall have any similar role under applicable state, local or foreign tax law (in such roles, the “ Tax Matters Representative ”). As Tax Matters Representative, the General Partner (or its designee) shall have the right and obligation to take all actions authorized and required, respectively, by the Code and applicable state, local and foreign tax law. The General Partner shall have the right to retain professional assistance in respect of any audit of the Partnership by the IRS, and all out-of-pocket expenses and fees incurred by the General Partner (or its designee) on behalf of the Partnership as Tax Matters Representative shall constitute Partnership expenses. In the event the Tax Matters Representative receives notice of a final Partnership adjustment under the Code, the Tax Matters Representative shall either (i) file a court petition for judicial review of such final adjustment in the manner and within the period provided under the Code, a copy of which petition shall be mailed to all Limited Partners on the date such petition is filed, or (ii) mail a written notice to all Limited Partners, within such period, that describes the General Partner’s reasons for determining not to file such a petition.

B. Except as otherwise provided in this Agreement, all elections and determinations required or permitted to be made by the Partnership under the Code or any applicable state, local or foreign tax law shall be made by the General Partner in its sole and absolute discretion.

C. The General Partner shall attempt to allocate the portion of (or any diminution in distributable proceeds resulting from) any taxes, penalties or interest imposed on the Partnership pursuant to the Partnership Tax Audit Rules to those Partners to whom such amounts are specifically attributable (whether as a result of their status, actions, inactions or otherwise) where such allocations can be achieved without unwarranted expense and effort (as measured in relation to the aggregate amount in question) as determined by the General Partner in its discretion, provided that under no circumstances shall the General Partner be liable for any such amounts.

D. In the event that the General Partner shall be removed or replaced pursuant to any provision of this Agreement, the successor to the General Partner shall assume the rights and obligations of this Section 10.2 .

Section 10.3 Withholding

Each Partner hereby authorizes the Partnership to withhold from or pay on behalf of or with respect to such Partner any amount of federal, state, local, or foreign taxes that the General Partner determines the Partnership is required to withhold or pay with respect to any amount distributable or allocable to such Partner pursuant to this Agreement, including, without limitation, any taxes required to be withheld or paid by the Partnership pursuant to Section 1441, 1442, 1445 or 1446 of the Code and any amounts allocable to such Partner under Section 10.2.C .

 

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Any amount paid on behalf of or with respect to a Partner shall constitute a loan by the Partnership to such Partner, which loan shall be due within fifteen (15) days after repayment is demanded of the Partner in question, and shall be repaid through withholding of subsequent distributions to such Partner. Nothing in this Section 10.3 shall create any obligation on the General Partner to advance funds to the Partnership or to borrow funds from third parties in order to make payments on account of any Liability of the Partnership under a withholding tax act. Any amounts payable by a Limited Partner hereunder shall bear interest at the base rate on corporate loans at large United States money center commercial banks, as published from time to time in The Wall Street Journal , plus two (2) percentage points (but not higher than the maximum lawful rate), such interest to accrue from the date such amount is due (i.e., fifteen (15) days after demand) until such amount is paid in full. To the extent the payment or accrual of withholding tax results in a federal, state or local tax credit to the Partnership, such credit shall be allocated to the Partner to whose distribution the tax is attributable.

Section 10.4 State and Local Tax Sharing

In the event that MGM or any of its Subsidiaries files (or is required to file) an affiliated, combined, consolidated or unitary group tax return under state or local tax law (a “ Consolidated State Tax Return ”) with the Partnership or MGP, the Partnership or MGP shall pay to MGM or the relevant Subsidiary of MGM an amount equal to the product of (i) the statutory rate imposed by the relevant state or locality for the tax covered by the applicable Consolidated State Tax Return and (ii) the amount of positive Separate Return Taxable Income for the Partnership or MGP (as applicable) with respect to such Consolidated State Tax Return; provided , that the Partnership or MGP (as applicable) shall not pay a greater amount of taxes than would have been payable by the Partnership or MGP (as applicable) on a standalone basis (calculated by assuming that the apportionment formula for the relevant Consolidated State Tax Return applies for purposes of determining such amount); provided , further , that MGM and its Subsidiaries shall use commercially reasonable efforts to not file a Consolidated State Tax Return with the Partnership or MGP if such action (x) will result in less taxes payable in the aggregate by MGM, Subsidiaries of MGM, and the Partnership or MGP (as applicable) and (y) will not limit the ability of MGM or any of its Subsidiaries to file a Consolidated State Tax Return with any Subsidiary of MGM. Unless otherwise agreed in writing, the Partnership or MGP shall pay such amount within thirty (30) days of being notified of the amount due by MGM. The notice by MGM requesting such payment shall be accompanied by the calculations and other information used to determine the Partnership’s or MGP’s obligations hereunder. The parties shall discuss in good faith any objections with respect to such calculations raised by the Partnership or MGP. In the event that the parties are unable to agree with respect to such calculations, then any disputed issues shall be submitted to an independent accounting firm for resolution. The costs of the independent accounting firm shall be shared equally by MGM and the Partnership or MGP (as applicable). If, as a result of any audit, amendment, other change or adjustment (a “ Tax Adjustment ”) to the state or local taxes of an affiliated, combined, consolidated or unitary group that includes MGM or any of its Subsidiaries, there is an additional amount of such state or local taxes due and payable or a refund of such state or local taxes previously paid, the obligations of the Partnership or MGP (as applicable) shall be redetermined pursuant to the provisions of this Section 10.4 , as if the adjustments made as a result of such Tax Adjustment were included as part of the originally filed tax return, and any payments made under this Section 10.4 shall be adjusted or reimbursed. The parties shall cooperate fully at such time

 

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and to the extent reasonably requested by the other party in connection with the preparation and filing of any Consolidated State Tax Return or the conduct of any pending or threatened audit, dispute, suit, action, proposed assessment or other proceeding concerning any matter contemplated under this Section 10.4 . For purposes of this Section 10.4 , “ Separate Return Taxable Income ” means, with respect to each taxable period or portion thereof and each state or locality for which the allocation is being computed, the amount of income calculated by multiplying the tax base of the Partnership or MGP (as applicable) for that state or locality by the apportionment formula for the relevant Consolidated State Tax Return, and taking into consideration nonapportionable items of income for the Partnership or MGP (as applicable). It is the intention of the parties that, in each jurisdiction in which MGM or any of its Subsidiaries files (or is required to file) a Consolidated State Tax Return with the Partnership or MGP, the Partnership or MGP (as applicable) shall be responsible for an amount of taxes that would have been payable by the Partnership or MGP (as applicable) on a standalone basis (calculated by assuming that the apportionment formula for the relevant Consolidated State Tax Return applied for purposes of determining such amount), and the parties agree to amend this provision, if necessary, after the date hereof in order to effectuate such intent.

ARTICLE 11

TRANSFERS AND WITHDRAWALS

Section 11.1 Transfer

No Partnership Interest and no portion of any Partnership Interest (or the proceeds thereof) and no rights, benefits or obligations of any Partner hereunder may be sold, transferred, pledged, encumbered or otherwise disposed of, whether by way of agreement or otherwise, directly or indirectly, or by transfer or assignment of interests in any Person (other than a publicly traded Person) (including, without limitation, by exit from the Partnership of a transferring Partner and entry by a new Partner to the Partnership or by means of any swap, derivative or similar transaction) (the foregoing being collectively, a “ Transfer ”), without the prior written consent of the General Partner, except in connection with a Permitted Transfer. Any Transfer or purported Transfer of a Partnership Interest not made in accordance with this Article 11 shall be null and void ab initio . For the avoidance of doubt, the foregoing shall not in any way restrict the transfer of REIT Shares.

Section 11.2 Substituted Limited Partners

A. No Limited Partner shall have the right to substitute a transferee as a Limited Partner in his, her or its place (including any transferee which may be approved by the General Partner pursuant to Section 11.1 ). The General Partner shall, however, have the right to consent to the admission of a transferee of the interest of a Limited Partner pursuant to this Section 11.2 as a Substituted Limited Partner, which consent may be given or withheld by the General Partner in its sole and absolute discretion. The General Partner’s failure or refusal to permit a transferee of any such interests to become a Substituted Limited Partner shall not give rise to any cause of action against the Partnership or any Partner. For the avoidance of doubt, a Limited Partner shall have the right to substitute a transferee as a Limited Partner in its place,

 

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without the consent of the General Partner, so long as the transferee is MGM or a controlled Affiliate of MGM.

B. A transferee who has been admitted as a Substituted Limited Partner in accordance with this Article 11 shall have all the rights and powers and be subject to all the restrictions and Liabilities of a Limited Partner under this Agreement. The admission of any transferee as a Substituted Limited Partner shall be conditioned upon the transferee executing and delivering to the Partnership an acceptance of all of the terms and conditions of this Agreement (including, without limitation, the provisions of Section 2.4 and such other documents or instruments as may be required or advisable to effect the admission, in the sole and absolute discretion of the General Partner).

C. Upon the admission of a Substituted Limited Partner, the General Partner shall amend Exhibit A to reflect the name, address, number of Partnership Units, and Percentage Interest of such Substituted Limited Partner and to eliminate or adjust, if necessary, the name, address and interest of the predecessor of such Substituted Limited Partner.

Section 11.3 Assignees

If the General Partner, in its sole and absolute discretion, does not consent to the admission of any transferee as a Substituted Limited Partner, as described in Section 11.2 , such transferee shall be considered an Assignee for purposes of this Agreement. An Assignee shall be entitled to all the rights of an assignee of a limited partnership interest under the Act, including the right to receive distributions from the Partnership and the share of Net Income, Net Losses, gain and loss attributable to the Partnership Units assigned to such transferee, the rights to Transfer the Partnership Units provided in this Article 11 , and the rights of Redemption provided in Section 8.6 , but shall not be deemed to be a holder of Partnership Units for any other purpose under this Agreement, and shall not be entitled to effect a Consent with respect to such Partnership Units on any matter presented to the Limited Partners for approval (such Consent right remaining with the transferor Limited Partner). In the event any such transferee desires to make a further assignment of any such Partnership Units, such transferee shall be subject to all the provisions of this Article 11 to the same extent and in the same manner as any Limited Partner desiring to make an assignment of Partnership Units.

Section 11.4 General Provisions

A. No Limited Partner may withdraw from the Partnership other than (i) as a result of a permitted Transfer of all of such Limited Partner’s Partnership Units in accordance with this Article 11 and the transferee(s) of such Partnership Units being admitted to the Partnership as a Substituted Limited Partner or (ii) pursuant to the exercise of its rights of Redemption of all of its Common Units under Section 8.6 .

B. Any Limited Partner who shall Transfer all of such Limited Partner’s Partnership Units in a Transfer permitted pursuant to this Article 11 where such transferee was admitted as a Substituted Limited Partner or pursuant to the exercise of its rights of Redemption of all of such Limited Partner’s Partnership Units under Section 8.6 shall cease to be a Limited Partner.

 

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C. If any Partnership Interest is Transferred during any quarterly segment of the Partnership’s fiscal year in compliance with the provisions of this Article 11 or exchanged or redeemed pursuant to Section 8.6 on any day other than the first day of a Partnership Year, then all distributions of available cash with respect to which the Partnership Record Date is before the date of such Transfer shall be made to the transferor Partner, and all distributions of available cash thereafter, in the case of a Transfer other than a redemption, shall be made to the transferee Partner.

D. In addition to any other restrictions on Transfer herein contained, including, without limitation the provisions of this Article 11 and Section 2.6 , in no event may any Transfer of a Partnership Interest by any Partner (including by way of a Redemption) be made (i) to any person or entity who lacks the legal right, power or capacity to own a Partnership Interest; (ii) in violation of applicable law; (iii) of any component portion of a Partnership Interest, such as the Capital Account, or rights to distributions, separate and apart from all other components of a Partnership Interest; (iv) if such Transfer would cause the Partnership to become, with respect to any employee benefit plan subject to Title I of ERISA, a “party-in-interest” (as defined in Section 3(14) of ERISA) or a “disqualified person” (as defined in Section 4975(c) of the Code); (v) if such Transfer would, in the opinion of counsel to the Partnership, cause any portion of the assets of the Partnership to constitute assets of any employee benefit plan pursuant to Department of Labor Regulations Section 2510.3-101; (vi) if such Transfer requires the registration of such Partnership Interest pursuant to any applicable federal or state securities laws; or (vii) if such Transfer subjects the Partnership to be regulated under ERISA, the Investment Company Act of 1940 or the Investment Advisors Act of 1940, each as amended.

E. The General Partner shall monitor the transfers of interests in the Partnership (including any acquisition of Partnership Units by the Partnership or the General Partner) to determine (i) if such interests could be treated as being traded on an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code and (ii) whether such transfers of interests could result in the Partnership being unable to qualify for the “safe harbors” set forth in Regulations Section 1.7704-1 (or such other guidance subsequently published by the IRS setting forth safe harbors under which interests will not be treated as “readily tradable on a secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code) (the “ Safe Harbors ”). The General Partner shall have the authority (but shall not be required) to take any steps it determines are necessary or appropriate in its sole and absolute discretion to prevent any trading of interests which could cause the Partnership to become a “publicly traded partnership” within the meaning of Code Section 7704, or any recognition by the Partnership of such transfers, or to ensure that one or more of the Safe Harbors is met.

Section 11.5 REIT Termination Transaction

A. MGP may engage in any merger (including a triangular merger), consolidation or other combination with or into another Person, sale of all or substantially all of its assets or any reclassification, recapitalization or change of outstanding REIT Common Shares (collectively, a “ Termination Transaction ”) without any consent or approval by the Limited Partners.

 

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B. In exercising its authority under this Agreement, the General Partner may, but shall be under no obligation to, take into account the tax consequences to any Partner (including MGP) of any action taken (or not taken) by any of them. The General Partner shall not have Liability to any Partner for monetary damages or otherwise for losses sustained, Liabilities incurred or benefits not derived by such Partner in connection with such decisions.

ARTICLE 12

ADMISSION OF PARTNERS

Section 12.1 Admission of Successor General Partner

A successor to all of the General Partner’s General Partner Interest pursuant to Section 11.1 who is proposed to be admitted as a successor General Partner shall be admitted to the Partnership as the General Partner, effective upon such Transfer. Any such transferee shall carry on the business of the Partnership without dissolution. In each case, the admission shall be subject to the successor General Partner executing and delivering to the Partnership an acceptance of all of the terms and conditions of this Agreement and such other documents or instruments as may be required to effect the admission. In the case of such admission on any day other than the first day of a Partnership Year, all items attributable to the General Partner Interest for such Partnership Year shall be allocated between the transferring General Partner and such successor as provided in Article 11 .

Section 12.2 Admission of Additional Limited Partners

A. After the admission to the Partnership of the initial Limited Partners on the date hereof, a Person who makes a Capital Contribution to the Partnership in accordance with this Agreement shall be admitted to the Partnership as an Additional Limited Partner only upon (i) execution of a joinder to this Agreement evidencing such Additional Limited Partner’s acceptance of all of the terms and conditions of this Agreement, including, without limitation, the power of attorney granted in Section 2.4 and (ii) furnishing to the General Partner such other documents or instruments as may be required in the discretion of the General Partner in order to effect such Person’s admission as an Additional Limited Partner.

B. Notwithstanding anything to the contrary in this Section 12.2 , no Person shall be admitted as an Additional Limited Partner without the consent of the General Partner, which consent may be given or withheld in the sole and absolute discretion of the General Partner. The admission of any Person as an Additional Limited Partner shall become effective on the date upon which the name of such Person is recorded on the books and records of the Partnership, following the receipt of the Capital Contribution in respect of such Limited Partner and the consent of the General Partner to such admission. All distributions of available cash with respect to which the Partnership Record Date is before the date of such admission shall be made solely to Partners and Assignees other than the Additional Limited Partner (other than in its capacity as an Assignee) and, except as otherwise agreed to by the Additional Limited Partners and the General Partner, all distributions of available cash thereafter shall be made to all Partners and Assignees including such Additional Limited Partner.

 

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Section 12.3 Amendment of Agreement and Certificate of Limited Partnership

For the admission to the Partnership of any Partner, the General Partner shall take all steps necessary and appropriate under the Act to amend the records of the Partnership and, if necessary, to prepare as soon as practical an amendment of this Agreement (including an amendment of Exhibit A ) and, if required by law, shall prepare and file an amendment to the Certificate and may for this purpose exercise the power of attorney granted pursuant to Section 2.4 .

ARTICLE 13

DISSOLUTION AND LIQUIDATION

Section 13.1 Dissolution

Subject to Section 13.1.A , the Partnership shall not be dissolved by the admission of Substituted Limited Partners or Additional Limited Partners or by the admission of a successor General Partner in accordance with the terms of this Agreement. Upon the withdrawal of the General Partner, any successor General Partner (selected as described in Section 13.1.A ) shall continue the business of the Partnership. The Partnership shall dissolve, and its affairs shall be wound up, upon the first to occur of any of the following (“ Liquidating Events ”):

A. an event of withdrawal of the General Partner, as defined in the Act, unless, within ninety (90) days after the withdrawal, a Majority in Interest of the Limited Partners agree in writing, in their sole and absolute discretion, to continue the business of the Partnership and to the appointment, effective as of the date of such withdrawal, of a successor General Partner;

B. an election to dissolve the Partnership made by the General Partner, in its sole and absolute discretion;

C. entry of a decree of judicial dissolution of the Partnership pursuant to the provisions of the Act;

D. the sale, in accordance with this Agreement of all of the assets and properties of the Partnership for cash or marketable securities;

E. the Incapacity of the General Partner, unless a Majority in Interest of the Limited Partners in their sole and absolute discretion agree in writing to continue the business of the Partnership and to the appointment, effective as of a date prior to the date of such Incapacity, of a substitute General Partner; or

F. the Redemption or other exchange for REIT Class A Shares of all Partnership Units (other than those of the General Partner) pursuant to this Agreement, unless waived by the General Partner.

 

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Section 13.2 Winding Up

A. Upon the occurrence of a Liquidating Event, the Partnership shall continue solely for the purposes of winding up its affairs in an orderly manner, liquidating its assets and satisfying the claims of its creditors and Partners, and no Partner shall take any action that is inconsistent with, or not necessary to or appropriate for, the winding up of the Partnership’s business and affairs. The General Partner (or, in the event there is no remaining General Partner, any Person elected by a Majority in Interest of the Limited Partners (the “ Liquidator ”)) shall be responsible for overseeing the winding up and dissolution of the Partnership and shall take full account of the Partnership’s Liabilities and property, and the Partnership property shall be liquidated as promptly as is consistent with obtaining the fair value thereof, and the proceeds therefrom (which may, to the extent determined by MGP, include REIT Shares) shall be applied and distributed in the following order:

(1) First, to the payment and discharge of all of the Partnership’s debts and Liabilities to creditors other than the General Partner;

(2) Second, to the payment and discharge of all of the Partnership’s debts and Liabilities to the General Partner; and

(3) The balance, if any, to the General Partner and Limited Partners in accordance with their positive Capital Account balances, determined after taking into account all Capital Account adjustments for the Partnership’s taxable year during which the liquidation occurs.

If, upon dissolution and termination of the Partnership, the Capital Account of any Partner (after giving effect to all contributions, distributions and allocations for all taxable years, including the year during which such liquidation occurs) is less than zero, then such Partner shall have no obligation to restore the negative balance in its Capital Account, and such deficit shall not be considered a debt owed to the Partnership or to any other Person for any purpose whatsoever.

The General Partner shall not receive any additional compensation for any services performed pursuant to this Article 13 other than reimbursement of its expenses as provided in Section 7.4 .

B. Notwithstanding the provisions of Section 13.2.A which require liquidation of the assets of the Partnership, but subject to the order of priorities set forth therein, if prior to or upon dissolution of the Partnership the General Partner or the Liquidator determines that an immediate sale of part or all of the Partnership’s assets would be impractical or would cause undue loss to the Partners, the General Partner or the Liquidator may, in its sole and absolute discretion, defer (including by establishing reserves and/or distributing into escrow) for a reasonable time the liquidation of any assets except those necessary to satisfy Liabilities of the Partnership (including to those Partners as creditors) and/or distribute to the Partners, in lieu of cash, as tenants in common and in accordance with the provisions of Section 13.2.A , undivided interests in such Partnership assets as the General Partner or the Liquidator deems not suitable for liquidation. Any such distributions in kind shall be made only if, in the good faith judgment of the General Partner or the Liquidator, such distributions in kind are in the best interest of the Partners, and shall be subject to such conditions relating to the disposition and management of

 

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such properties as the General Partner or the Liquidator deems reasonable and equitable and to any agreements governing the operation of such properties at such time. The General Partner or the Liquidator shall determine the fair market value of any property distributed in kind using such reasonable method of valuation as it may adopt.

Section 13.3 Rights of Limited Partners

Except as otherwise provided in this Agreement, each Limited Partner shall look solely to the assets of the Partnership for the return of such Limited Partner’s Capital Contribution and shall have no right or power to demand or receive property from the General Partner. No Limited Partner shall have priority over any other Limited Partner as to the return of his Capital Contributions, distributions or allocations.

Section 13.4 Notice of Dissolution

In the event a Liquidating Event occurs or an event occurs that would, but for the provisions of Section 13.1 , result in a dissolution of the Partnership, the General Partner or the Liquidator shall, within thirty (30) days thereafter, provide written notice thereof to each of the Partners and to all other parties with whom the Partnership regularly conducts business (as determined in the discretion of the General Partner) and shall publish notice thereof in a newspaper of general circulation in each place in which the Partnership regularly conducts business (as determined in the discretion of the General Partner).

Section 13.5 Cancellation of Certificate of Limited Partnership

Upon the completion of the liquidation of the Partnership cash and property as provided in Section 13.2 , the Partnership shall be terminated, a certificate of cancellation shall be filed, and the Certificate and all qualifications of the Partnership as a foreign limited partnership in jurisdictions other than the State of Delaware shall be cancelled and such other actions as may be necessary to terminate the Partnership shall be taken.

Section 13.6 Reasonable Time for Winding Up

A reasonable time shall be allowed for the orderly winding up of the business and affairs of the Partnership and the liquidation of its assets pursuant to Section 13.2 in order to minimize any losses otherwise attendant upon such winding up, and the provisions of this Agreement shall remain in effect between the Partners during the period of liquidation.

Section 13.7 Waiver of Partition

Each Partner hereby waives any right to partition of the Partnership property.

Section 13.8 Liability of Liquidator

Any Liquidator shall be indemnified and held harmless by the Partnership in the same manner and to the same degree as an Indemnitee may be indemnified pursuant to Section 7.7 .

 

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ARTICLE 14

AMENDMENT OF PARTNERSHIP AGREEMENT; CONSENTS

Section 14.1 Amendments

A. The actions requiring consent or approval of Limited Partners pursuant to this Agreement, including Section 7.3 , or otherwise pursuant to applicable law, are subject to the procedures in this Article 14 .

B. Amendments to this Agreement may be effectuated pursuant to Section 7.3.C and 7.3.D . Any amendment to this Agreement shall be deemed effective when made by the General Partner.

Section 14.2 Action by the Partners

A. Meetings of the Partners may be called by the General Partner and shall be called upon the receipt by the General Partner of a written request by Limited Partners holding thirty percent (30%) or more of the Partnership Interests held by Limited Partners. The call shall state the nature of the business to be transacted. Notice of any such meeting shall be given to all Partners not less than seven (7) days nor more than thirty (30) days prior to the date of such meeting. Partners may vote in person or by proxy at such meeting. Whenever the vote or Consent of the Limited Partners or of the Partners is permitted or required under this Agreement, such vote or Consent may be given at a meeting of Partners or may be given in accordance with the procedures prescribed in this Article 14 .

B. Any action required or permitted to be taken at a meeting of the Partners may be taken without a meeting if a written consent setting forth the action so taken is signed by the Partners holding the Percentage Interests as are expressly required by this Agreement for the action in question. Such Consent may be in one instrument or in several instruments, and shall have the same force and effect as a vote of the Percentage Interests of the Partners (expressly required by this Agreement). Such Consent shall be filed with the General Partner. An action so taken shall be deemed to have been taken at a meeting held on the effective date so certified.

C. Each Limited Partner may authorize any Person or Persons to act for him by proxy on all matters in which a Limited Partner is entitled to participate, including waiving notice of any meeting, or voting or participating at a meeting. Every proxy must be signed by the Limited Partner or his attorney-in-fact. A proxy may be granted in writing, by means of electronic transmission or as otherwise permitted by applicable law. No proxy shall be valid after the expiration of eleven (11) months from the date thereof unless otherwise provided in the proxy. Every proxy shall be revocable at the pleasure of the Limited Partner executing it, such revocation to be effective upon the Partnership’s receipt of written notice of such revocation from the Limited Partner executing such proxy.

D. Each meeting of Partners shall be conducted by the General Partner or such other Person as the General Partner may appoint pursuant to such rules for the conduct of the meeting as the General Partner or such other Person deems appropriate.

 

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ARTICLE 15

GENERAL PROVISIONS

Section 15.1 Addresses and Notice

Any notice, demand, request or report required or permitted to be given or made to a Partner or Assignee under this Agreement shall be in writing and shall be deemed given or made when delivered in person or when sent by first class United States mail, nationally recognized overnight delivery service, or electronic mail to the Partner or Assignee at the address set forth on Exhibit A or such other address as the Partners shall notify the General Partner in writing.

Section 15.2 Titles and Captions

All article or section titles or captions in this Agreement are for convenience only. They shall not be deemed part of this Agreement and in no way define, limit, extend or describe the scope or intent of any provisions hereof. Except as specifically provided otherwise, references to “Articles” and “Sections” are to Articles and Sections of this Agreement.

Section 15.3 Pronouns and Plurals

Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine or neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa.

Section 15.4 Further Action

The parties shall execute and deliver all documents, provide all information and take or refrain from taking action as may be necessary or appropriate to achieve the purposes of this Agreement.

Section 15.5 Binding Effect

This Agreement shall be binding upon and inure to the benefit of the parties hereto and their heirs, executors, administrators, successors, legal representatives and permitted assigns.

Section 15.6 Creditors

Other than as expressly set forth herein with respect to Indemnitees, none of the provisions of this Agreement shall be for the benefit of, or shall be enforceable by, any creditor of the Partnership in its capacity as such or other third party having dealings with the Partnership.

 

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Section 15.7 Waiver

No failure by any party to insist upon the strict performance of any covenant, duty, agreement or condition of this Agreement or to exercise any right or remedy consequent upon any breach thereof shall constitute waiver of any such breach or any other covenant, duty, agreement or condition.

Section 15.8 Counterparts

This Agreement may be executed in counterparts, all of which together shall constitute one agreement binding on all the parties hereto, notwithstanding that all such parties are not signatories to the original or the same counterpart. Each party shall become bound by this Agreement immediately upon affixing its signature hereto.

Section 15.9 Applicable Law; Waiver of Jury Trial

A. This Agreement shall be construed in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of law.

B. Each Partner hereby stipulates that any dispute or disagreement between or among any of the parties hereto as to the interpretation of any provision of, or the performance of obligations under, this Agreement shall be commenced and prosecuted in its entirety in, and consents to the exclusive jurisdiction and proper venue of, the Delaware Court of Chancery (and if the Delaware Court of Chancery shall be unavailable, any federal court located within the State of Delaware), and each party hereto consents to personal and subject matter jurisdiction and venue in such courts and waives and relinquishes all right to attack the suitability or convenience of such venue or forum by reason of its present or future domiciles, or by any other reason, for any such dispute or disagreement. The parties hereto acknowledge that all directions issued by the forum court, including all injunctions and other decrees, will be binding and enforceable in all jurisdictions and countries. TO THE FULLEST EXTENT PERMITTED BY LAW, EACH PARTY HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Section 15.10 Invalidity of Provisions

If any provision of this Agreement is or becomes invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall not be affected thereby.

Section 15.11 Entire Agreement

This Agreement contains the entire understanding and agreement among the Partners with respect to the subject matter hereof and supersedes any other prior written or oral understandings or agreements among them with respect thereto.

 

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Section 15.12 No Rights as Shareholders

Nothing contained in this Agreement shall be construed as conferring upon the holders of Partnership Units any rights whatsoever as holders of REIT Common Shares or otherwise as shareholders of MGP, including, without limitation, any right to receive dividends or other distributions made to shareholders of MGP or to vote or to consent or to receive notice as shareholders in respect of any meeting of shareholders for the election of trustees of MGP or any other matter.

Section 15.13 Sole Discretion

Unless otherwise expressly provided in this Agreement, any action, consent or approval or any decision or election of the General Partner may be granted or withheld or made, taken or not taken, in the General Partner’s sole and absolute discretion.

[ Signature Page Follows ]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Amended and Restated Agreement of Limited Partnership as of the date first written above.

 

GENERAL PARTNER:
MGM Growth Properties OP GP LLC
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
LIMITED PARTNERS:
MGM Growth Properties LLC
By:  

/s/ John M. McManus

Name:   Andy H. Chien
Title:   Chief Financial Officer
MGM Grand Detroit, LLC
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
Mandalay Corp.
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
Ramparts, Inc.
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
New Castle Corp.
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary

[AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF MGM GROWTH

PROPERTIES OPERATING PARTNERSHIP LP]

MGM Resorts Mississippi, Inc.
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
Victoria Partners ,
a Nevada partnership
By: MGM Resorts International,
a Delaware corporation
Its: Managing Venturer
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Executive Vice President, General Counsel and Secretary
Park District Holdings, LLC
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
New York-New York Hotel & Casino, LLC
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary
The Mirage Casino-Hotel, LLC
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Authorized Representative
Beau Rivage Resorts, LLC
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Authorized Representative

[AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF MGM GROWTH

PROPERTIES OPERATING PARTNERSHIP LP]

Joinder of Additional Limited Partner

The undersigned hereby agrees to become a party to the Amended and Restated Agreement of Limited Partnership Agreement of MGM Growth Properties Operating Partnership LP (the “ Limited Partnership Agreement ”) as a Limited Partner. The undersigned is hereby fully bound by, and subject to, all of the covenants, terms, conditions and obligations of the Limited Partnership Agreement applicable to Limited Partners, and entitled to all the rights incidental thereto, with the same force and effect as though the undersigned had executed the Limited Partnership Agreement as a signatory party thereto.

 

ADDITIONAL LIMITED PARTNERS:
[                                                                                        ]
By:  

 

Name:  
Title:  
Date:  

EXHIBIT A

PARTNERS, CONTRIBUTIONS AND PARTNERSHIP INTERESTS

 

Name and Address of Partner

   Capital
Contributions 		     Partnership
Units 		     Percentage Interest  

General Partner

        

MGM Growth Properties OP GP LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

     —         —        
  		100% General Partner
Interest 		  
  

COMMON UNITS

        

Limited Partners

        

MGM Growth Properties LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

   $ 1,207,500,000         57,500,000.00         26.68%   

MGM Grand Detroit, LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

   $ 525,178,323         25,008,491.57         11.61%   

Mandalay Corp.

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

   $ 1,105,265,246         52,631,678.36         24.42%   

Ramparts, Inc.

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

   $ 361,695,633         17,223,601.57         7.99%   

New Castle Corp.

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

   $ 370,136,438         17,625,544.65         8.18%   

MGM Resorts Mississippi, Inc.

875 Beach Boulevard

Biloxi, MS 39530

   $ 169,754,635         8,083,554.03         3.75%   

Victoria Partners

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

   $ 275,246,451         13,106,973.89         6.08%   

Park District Holdings, LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

   $ 20,434,470         973,070.00         0.45%   

The Mirage Casino-Hotel, LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

   $ 113,761,344         5,417,206.85         2.51%   

New York-New York Hotel & Casino, LLC

3950 Las Vegas Boulevard South

Las Vegas, NV 89119

   $ 76,667,104         3,650,814.50         1.70%   

Beau Rivage Resorts, LLC

875 Beach Boulevard

Biloxi, MS 39530

   $ 299,860,356         14,279,064.58         6.63%   

 

A-1

EXHIBIT B

NOTICE OF REDEMPTION

The undersigned hereby (i) transfers                      Common Units of MGM Growth Properties Operating Partnership LP in accordance with the terms of the Amended and Restated Limited Partnership Agreement of MGM Growth Properties Operating Partnership LP and the rights of Redemption and/or exchange, as applicable, referred to therein, (ii) surrenders such Common Units and all right, title and interest therein and (iii) directs that the cash or REIT Class A Shares deliverable upon Redemption or exchange be delivered to the address specified below, and if applicable, that such REIT Class A Shares be registered or placed in the name(s) and address(es) specified below.

Underwriter Redemption:     ¨   Yes     ¨   No

 

Dated:  

 

  
  Name of Limited Partner   
  or Underwriter:   

 

 

 

  (Signature of Limited Partner or Underwriter)
 

 

  (Street Address)
 

 

  (City) (State) (Zip Code)
  Signature Guaranteed by:                                 
 

 

Deliver cash or issue REIT Class A Shares to:                                 

Please insert social security or identifying number:                                 

Name:                                 

 

B-1

EXHIBIT C

FORM OF PARTNERSHIP UNIT CERTIFICATE

CERTIFICATE FOR PARTNERSHIP UNITS OF

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP

 

No.                                                          COMMON UNITS

MGM Growth Properties OP GP LLC, as the General Partner of MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Partnership ”), hereby certifies that                      is a Limited Partner of the Partnership whose Partnership Interests therein, as set forth in the Amended and Restated Agreement of Limited Partnership of MGM Growth Properties Operating Partnership LP (the “ Partnership Agreement ”), under which the Partnership is existing (copies of which are on file at the Partnership’s principal office at 3950 Las Vegas Boulevard South, Las Vegas, Nevada 89109, represent                      units of limited partnership interest in the Partnership.

THE COMMON UNITS REPRESENTED BY THIS CERTIFICATE OR INSTRUMENT MAY NOT BE TRANSFERRED, SOLD, ASSIGNED, PLEDGED, HYPOTHECATED OR OTHERWISE DISPOSED OF UNLESS SUCH TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION COMPLIES WITH THE PROVISIONS OF THE PARTNERSHIP AGREEMENT AS OF              ,          AS IT MAY BE AMENDED FROM TIME TO TIME (A COPY OF WHICH IS ON FILE WITH THE PARTNERSHIP). EXCEPT AS OTHERWISE PROVIDED IN SUCH AGREEMENT, NO TRANSFER, SALE, ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION OF THE COMMON UNITS REPRESENTED BY THIS CERTIFICATE MAY BE MADE EXCEPT (A) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “ ACT ”), OR (B) IF THE PARTNERSHIP HAS BEEN FURNISHED WITH A SATISFACTORY OPINION OF COUNSEL FOR THE HOLDER THAT SUCH TRANSFER, SALE ASSIGNMENT, PLEDGE, HYPOTHECATION OR OTHER DISPOSITION IS EXEMPT FROM THE PROVISIONS OF SECTION 5 OF THE ACT AND THE RULES AND REGULATIONS IN EFFECT THEREUNDER.

DATED:              ,          .

 

      MGM Growth Properties OP GP LLC ,
    General Partner of MGM Growth Properties Operating Partnership LP
ATTEST:                                     
By:  

 

    By:  

 

 

C-1

Exhibit 10.7

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP

ANNUAL PERFORMANCE-BASED INCENTIVE PLAN

PURPOSE

The MGM Growth Properties Operating Partnership LP Annual Performance-Based Incentive Plan (the “ Plan ”) is an annual short-term incentive plan designed to reward employees of MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Company ”), for achieving pre-established corporate performance goals. The Plan is intended to provide an incentive for superior performance and to motivate participating officers toward the highest levels of achievement and business results, to tie their goals and interests to those of the Company, its affiliates and, ultimately, the shareholders of MGM Growth Properties LLC, a Delaware limited liability company and indirect affiliate of the Company (“ MGP ”), and to enable the Company to attract and retain highly qualified executive officers.

ARTICLE 1

ELIGIBILITY AND PARTICIPATION

1.1 All employees of the Company are eligible to participate in the Plan. At or prior to the time performance objectives for a “ Performance Period ” are established, as defined in Section 2.2 below, the board of managers of MGM Growth Properties OP GP LLC, a Delaware limited liability company, which is the general partner of the Company (the “ Board ”), will designate which of its employees of the Company among those eligible shall participate in the Plan for such Performance Period (the “ Participants ”).

ARTICLE 2

PLAN YEAR, PERFORMANCE PERIODS AND PERFORMANCE OBJECTIVES

2.1 The fiscal year of the Plan (the “ Plan Year ”) shall be the fiscal year beginning on January 1 and ending on December 31; provided, that for 2016, the Plan year shall be the short year commencing on April 19, 2016, and ending on December 31, 2016. The performance period with respect to which bonuses shall be calculated and paid under the Plan (the “ Performance Period ”) shall generally be the Plan Year but may be longer or shorter than a Plan Year; provided, however, that the Board shall have the authority to designate different Performance Periods under the Plan, which need not be identical for all Participants.

2.2 Generally, within the first ninety days of each Performance Period, the Board shall establish in writing, with respect to such Performance Period, (a) one or more performance goals, (b) a target objective or objectives with respect to such performance goals and (c) a formula or method for computing the amount of bonus compensation awardable to a Participant if the performance goals are attained.

2.3 Performance goals shall be based upon achievement of performance measures specified by the Board. Performance measures under this Plan include:

(a) Market share;

(b) Gross revenue;

(c) Pretax operating income;

(d) Net earnings or net income (before or after taxes);

(e) Earnings per share (or other equity interest);

(f) Net sales or revenue growth;

(g) Net operating profit;

(h) Return measures (including, but not limited to, return on assets, capital, invested capital, equity, sales, or revenue);

(i) Cash flow (including, but not limited to, operating cash flow, free cash flow, cash flow return on equity, and cash flow return on investment);

(j) Earnings before or after taxes, interest, depreciation, and/or amortization;

(k) Gross or operating margins;

(l) Productivity;

(m) Productivity ratios;

(n) Cost reductions and savings;

(o) Share (or other equity) price (including, but not limited to, growth measures);

(p) Consummation of debt and equity offerings;

(q) Equity capital raised;

(r) Expense targets;

(s) Margins;

(t) Operating efficiency;

(u) Market share;

(v) Customer satisfaction;

(w) Working capital targets;

 

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(x) Economic value added or EVA ® (net operating profit after tax minus the sum of capital multiplied by the cost of capital);

(y) Total shareholder return;

(z) Actual or adjusted funds from operations (FFO);

(aa) Actual or adjusted funds from acquisitions (FFA); and

(bb) Such other business and/or personal criteria as may be deemed appropriate by the Board.

Any performance measures may be used to measure the performance of the Company, any of its affiliates (including MGP) or operating units or any combination of the foregoing, annually or cumulatively over a period of years, on an absolute basis or relative to a pre-established target, to a previous year’s result as the Board may deem appropriate, or any of the above performance measures as compared to the performance of a group of comparator companies, or published or special index that the Board, in its sole discretion, deems appropriate, or the Board may select performance measure (o) above as compared to various stock market indices. The Board also has the authority to provide for accelerated vesting of any bonus award based on the achievement of performance goals pursuant to the performance measures specified in this Section 2.3.

2.4 The Board may provide that any evaluation of performance may include or exclude, and may adjust the performance goals (including to prorate goals and payments for a partial Performance Period) in the event of, any of the following events that occurs during a Performance Period: (a) asset write-downs, (b) litigation or claim judgments or settlements, (c) the effect of changes in tax laws, accounting principles, or other laws or provisions affecting reported results, (d) any reorganization and restructuring programs, (e) extraordinary nonrecurring items as described in applicable accounting provisions and/or in management’s discussion and analysis of financial condition and results of operations appearing in MGP’s annual report to shareholders for the applicable year, (f) other nonrecurring events such as mergers, acquisitions, reorganizations, spinoffs or divestitures, (g) foreign exchange gains and losses, (h) financing transactions and (i) such other occurrences as may be deemed appropriate by the Board in its sole discretion.

ARTICLE 3

DETERMINATION OF BONUS AWARDS

3.1 As soon as practicable after the end of each Performance Period (or such sooner time as the performance goals have been met), the Board shall certify to what extent the Company and the Participants have achieved the performance goal or goals for such Performance Period, and the Board shall calculate the amount of each Participant’s bonus for such Performance Period based upon the performance goals, objectives and computation formulae for such Performance Period established pursuant to Section 2.2 above.

3.2 No Participant’s bonus award for any Plan Year shall exceed the sum of $8,000,000.

 

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ARTICLE 4

PAYMENT OF BONUS AWARDS

4.1 Approved bonus awards shall be payable by the Company or any of its affiliates. Payment may be made in cash and/or, solely in the case of payment by MGP, Class A common shares of MGP, issued pursuant to the MGM Growth Properties LLC 2016 Omnibus Incentive Plan and subject to such terms and conditions, including performance hurdles, vesting and contingencies, as may be permitted thereunder. Payment shall be made to a Participant, or to the Participant’s estate in the event of the Participant’s death, as soon as practicable during, and generally by March 15th of, the Plan Year following the Plan Year to which the bonus awards relate.

4.2 A bonus award that would otherwise be payable to a Participant who is not employed by the Company or one of its affiliates on the last day of a Performance Period or on such sooner date as the performance goals have been met may be prorated or not paid based on rules to be established by the Board for the administration of the Plan.

ARTICLE 5

OTHER TERMS AND CONDITIONS

5.1 No person shall have any legal claim to be granted an award under the Plan, and the Board shall have no obligation to treat Participants uniformly. Except as may be otherwise required by law, bonus awards under the Plan shall not be subject in any manner to anticipation, alienation, sale, transfer, assignment, pledge, encumbrance, charge, garnishment, execution or levy of any kind, either voluntary or involuntary. Bonuses awarded under the Plan shall be payable from the general assets of the Company, and no Participant shall have any claim with respect to any specific assets of the Company.

5.2 Neither the Plan nor any action taken under the Plan shall be construed as giving any employee the right to be retained in the employ of the Company or any affiliate or to obligate the Company or any affiliate to maintain any employee’s compensation at any level.

5.3 The Company or any of its affiliates may deduct from any award any applicable withholding taxes or any amounts owed by the employee to the Company or any of its affiliates.

5.4 All bonus awards shall be subject to the Company’s and MGP’s clawback policies as may be in effect from time to time.

5.5 The Company intends that the Plan and all bonus awards avoid the imposition of additional taxes, interest, and penalties pursuant to Section 409A of the Internal Revenue Code of 1986, as amended (the “ Code ”), and, accordingly, the Plan shall be interpreted to that end. Notwithstanding any contrary provision in the Plan, any payments of “nonqualified deferred compensation” (within the meaning of Section 409A of the Code) that are otherwise required to be paid under the Plan to a “specified employee” (as defined under Section 409A of the Code) as a result of his or her termination of employment (which for this purpose shall mean a “separation from service” under Section 409A of the Code) shall be delayed for the first six months

 

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following such termination (or, if earlier, the date of death of the specified employee) and shall instead be paid on the first payroll date that immediately follows the end of such six-month period (or the first payroll date scheduled after the death of the specified employee).

ARTICLE 6

ADMINISTRATION

6.1 The Plan shall be administered by the Board, which shall have full power and authority to administer and interpret the provisions of the Plan, to resolve any inconsistencies or ambiguities, provide for any omissions and resolve any conflicts under the Plan, and to adopt such rules, regulations, agreements, guidelines and instruments for the administration of the Plan and for the conduct of its business as it deems necessary or advisable.

6.2 The Board shall have full power to delegate to a Committee comprised of one or more of its members all or any number of its administrative or other duties or powers under this Plan. If the Board delegates such duties or powers to a Committee, all references under this Plan to the “ Board ” shall be interpreted to include such Committee.

6.3 The Board may rely on opinions, reports or statements of officers or employees of the Company or any affiliate thereof and of Company counsel (inside or retained counsel), public accountants and other professional or expert persons.

6.4 The Board reserves the right to amend or terminate the Plan in whole or in part at any time.

6.5 No member of the Board shall be liable for any action taken or omitted to be taken or for any determination made by him or her in good faith with respect to the Plan, and the Company shall indemnify and hold harmless each member of the Board against any cost or expense (including counsel fees) or liability (including any sum paid in settlement of a claim with the approval of the Board) arising out of any act or omission in connection with the administration or interpretation of the Plan, unless arising out of such person’s own fraud or bad faith.

6.6 The place of administration of the Plan shall be the State of Nevada, and the validity, construction, interpretation, administration and effect of the Plan and of its rules and regulations, and rights relating to the Plan, shall be determined solely in accordance with the laws of the State of Delaware.

*        *        *

 

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Exhibit 10.8

MGM G ROWTH P ROPERTIES O PERATING P ARTNERSHIP LP

C HANGE OF C ONTROL P OLICY FOR E XECUTIVE O FFICERS

A DOPTED : A PRIL  19, 2016

MGM G ROWTH P ROPERTIES O PERATING P ARTNERSHIP LP

C HANGE OF C ONTROL P OLICY FOR E XECUTIVE O FFICERS

1. Definitions

For purposes of the Change of Control Policy for Executive Officers, the following terms are defined as set forth below (unless the context clearly indicates otherwise):

 

Administrator    The third-party accounting, actuarial, consulting or similar firm which shall be retained by the Company prior to a Change of Control to administer this Policy following a Change of Control.
Annual Base Salary    The Participant’s base salary as in effect as of the date of a Change of Control.
Board    The Board of Managers of MGM Growth Properties OP GP LLC, a Delaware limited liability company, which is the general partner of the Company.
Change of Control   

“Change of Control” means, with respect to (x) MGP or (y) provided that it directly or indirectly controls, is controlled by or is under common control with MGP at the relevant time, MGM (each of (x) and (y), a “ Referenced Entity ”), the first to occur of:

 

(1) the date that a reorganization, merger, consolidation, recapitalization, or similar transaction (other than a spinoff, exchange offer or similar transaction to or with the applicable Referenced Entity’s public shareholders) is consummated, unless: (i) at least 50% of the outstanding voting securities of the surviving or resulting entity (including, without limitation, an entity which as a result of such transaction owns the Company either directly or through one or more subsidiaries) (“Resulting Entity”) are beneficially owned, directly or indirectly, by the persons who were the beneficial owners of the outstanding voting securities of the Corporation immediately prior to such transaction in substantially the same proportions as their beneficial ownership, immediately prior to such transaction, of the outstanding voting securities of the Corporation and (ii) immediately following such transaction no person or persons acting as a group beneficially owns capital stock of the Resulting Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Resulting Entity;

 

(2) the date that a majority of members of the Referenced Entity’s Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Referenced Entity’s Board before the date of the appointment or election; provided that no individual shall be considered to be so endorsed if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934) or other actual or threatened solicitation of

  

proxies or consents by or on behalf of a Person other than the Referenced Entity’s Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest;

 

(3) the date that any one person, or persons acting as a group, acquires (or has or have acquired as of the date of the most recent acquisition by such person or persons) beneficial ownership of stock of the Referenced Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Referenced Entity; or

 

(4) the date that any one person acquires, or persons acting as a group acquire (or has or have acquired as of the date of the most recent acquisition by such person or persons), assets from the Referenced Entity that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value of all of the assets of the Referenced Entity immediately before such acquisition or acquisitions.

 

For the avoidance of doubt, there can only be one Change of Control for purposes of the Policy.

Code    The Internal Revenue Code of 1986, as amended from time to time.
Company    MGM Growth Properties Operating Partnership LP, a Delaware limited partnership, or any successor thereto.
Current Employment Agreement    The Participant’s employment agreement with the Company or any of its affiliates (including, without limitation, any Parent or Subsidiary) in effect as of the applicable date of determination, if any.
Date of Termination   

If the Participant’s employment is terminated by:

 

(i) the Employer with Employer’s Good Cause or by the Participant for Participant’s Good Cause, the Date of Termination shall be the date on which the Participant or the Employer, as the case may be, receives the Notice of Termination (as described in Section 3.2(b)) or any later date specified therein, as the case may be.

 

(ii) the Employer without Employer’s Good Cause or by the Participant without Participant’s Good Cause, the Date of Termination shall be the date on which the Employer or the Participant, as applicable, notifies the other party of such termination.

 

Notwithstanding the above, in the event that the Participant’s employment is terminated within six months prior to a Change of Control under circumstances entitling the Participant to the benefits described in Section 3 hereof were such termination of employment within the period commencing on the Change of Control and ending on the one-year anniversary thereof, the Participant’s Date of Termination for purposes of Section 3 hereof shall be the

 

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   date of the Change of Control.
Effective Date    April 19, 2016.
Employer    As applicable, the Company, the Subsidiaries, any Parent and any affiliated companies.
Employer’s Good Cause    As defined in Section 3.2(a).
Excise Tax    The excise tax imposed by Section 4999 of the Code, together with any interest or penalties imposed with respect to such excise tax.
Executive Officer    Any executive officer of the Company.
MGM    MGM Resorts International, a Delaware corporation, and any successor entity.
MGP    MGM Growth Properties LLC, a Delaware limited liability company, and any successor entity.
Net After-Tax Benefit    The present value (as determined in accordance with Sections 280G(b)(2)(A)(ii) and 280G(d)(4) of the Code) of a Participant’s Payments less any Federal, state, and local income taxes and any Excise Tax payable on such amount.
Parent    A parent corporation as defined in Section 424(e) of the Code.
Participant    An Executive Officer who meets the eligibility requirements of Section 2.1.
Participant’s Good Cause    As defined in Section 3.2(a).
Payment    Any payment or distribution in the nature of compensation (within the meaning of Section 280G(b)(2) of the Code) to or for the benefit of the Participant, whether paid or payable pursuant to this Policy or otherwise.
Policy    This MGM Growth Properties Operating Partnership LP Change of Control Policy for Executive Officers.
Separation Benefits    The amounts and benefits payable or required to be provided in accordance with Section 3.3 of this Policy.
Subsidiary    A subsidiary corporation of the Company as defined in Section 424(f) of the Code or corporation or other entity, whether domestic or foreign, direct or indirect, in which the Company has or obtains a proprietary interest of more than fifty percent (50%) by reason of stock ownership or otherwise.

 

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Target Bonus    The annual target bonus award for which a Participant is eligible under the Company’s Annual Performance-Based Incentive Plan for Executive Officers, or any successor plan, as in effect as of the date of a Change of Control (or, if greater, as of the Date of Termination).

2. Eligibility

2.1. Participation . Each Executive Officer set forth on Schedule A hereto shall be a Participant subject to the Policy effective as of the Effective Date and each other employee added to Schedule A by the Board from time to time shall become a Participant subject to the Policy effective as of the date of such Board action.

2.2. Duration of Participation . A Participant shall cease to be a Participant subject to the Policy if (i) the Participant terminates employment with the Employer under circumstances not entitling him or her to Separation Benefits or (ii) the Board determines that Participant shall cease to be subject to the Policy prior to the occurrence of a Change of Control, provided that no Executive Officer may be so removed from Policy participation subsequent to or in connection with a Change of Control that actually occurs. In the event that a Participant is removed from the Policy pursuant to the preceding sentence, the Company shall, effective as of the date of such removal, amend the terms of any equity award or other agreement between the Company and such Participant, to the minimum extent necessary, to avoid the imposition of any additional taxes and/or penalties under Section 409A of the Code on such Participant as a result of such removal. Additionally, in the event that a Participant was removed from Policy participation in the six months prior to a Change of Control, such Participant will be deemed retroactively eligible to participate in the Policy. Furthermore, a Participant who is entitled to receive benefits under the Policy shall remain a Participant subject to the Policy until the amounts and benefits payable pursuant to the Policy have been paid or provided to the Participant in full.

3. Separation Benefits

3.1. Right to Separation Benefits . A Participant shall be entitled to receive from the Employer the Separation Benefits as provided in Section 3.3, if a Change of Control occurs and the Participant’s employment with the Employer is terminated under circumstances specified in Section 3.2(a) during the period commencing on the date that is six months prior to such Change of Control and ending on the first anniversary of such Change of Control. Termination of employment shall have the same meaning as “separation from service” within the meaning of Treasury Regulation § 1.409A-1(h).

3.2. Termination of Employment .

 

(a) Terminations which give rise to Separation Benefits under this Policy . The circumstances specified in this Section 3.2(a) are any termination of employment with the Employer by action of the Employer without Employer’s Good Cause (and not by reason of Participant’s death or disability) or by a Participant with Participant’s Good Cause.

(x) For purposes of this Policy, “Employer’s Good Cause” shall have the following meaning, regardless of the definition given such term in any Current Employment Agreement:

 

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  (i) Participant’s failure to reasonably abide by Employer’s policies and procedures, misconduct, insubordination, failure to perform the duties required of Participant up to reasonable standards established by the Employer’s senior management, or material breach of Participant’s Current Employment Agreement, which failure or breach is not cured by the Participant within ten (10) days after written notice thereof from Employer specifying the facts and circumstances of the alleged failure or breach, provided, however, that such notice and opportunity to cure shall not be required if, in the good faith judgment of the Board, such breach is not capable of being cured within ten (10) days;

 

  (ii) Participant’s failure or inability to apply for and obtain any license, qualification, clearance or other similar approval which the Employer or any regulatory authority which has jurisdiction over the Employer requests or requires that the Participant obtain;

 

  (iii) The Employer is directed by any governmental authority in Nevada, New Jersey, Michigan, Mississippi, Illinois, Macau S.A.R., or any other jurisdiction in which the Employer is engaged in a gaming business or where the Employer has applied to (or during the term of the Participant’s employment under the Current Employment Agreement, may apply to) engage in a gaming business to cease business with the Participant; or

 

  (iv) Any of the Employer’s gaming business licenses are threatened to be, or are, denied, curtailed, suspended or revoked as a result of the Participant’s employment by the Employer or as a result of the Participant’s actions.

(y) For purposes of this Policy, “Participant’s Good Cause” shall have the following meaning, regardless of the definition given such term in any Current Employment Agreement:

 

  (i) The failure of Employer to pay Participant any compensation when due; or

 

  (ii) A material reduction in the scope of duties or responsibilities of Participant or any reduction in Participant’s salary or Target Bonus.

Within ten (10) days following the first occurrence of circumstances constituting Participant’s Good Cause, the Participant shall give the Employer thirty (30) days’ advance written notice specifying the facts and circumstances of the alleged breach. During such thirty (30) day period, the Employer may either cure the breach (in which case such notice will be considered withdrawn) or declare (to the Participant in writing) that the Employer disputes that Participant’s Good Cause exists, in which case Participant’s Good Cause shall not exist until the dispute is resolved in accordance with the methods for resolving disputes specified in Exhibit A hereto.

 

(b)

Notice of Termination . Any termination of employment initiated by the Employer for Employer’s Good Cause, or by the Participant for Employee’s Good Cause, shall be communicated by a Notice of Termination to the other party. For purposes of this Policy, a “Notice of Termination” means a written notice which (i) indicates the specific

 

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termination provision in this Policy relied upon, and (ii) to the extent applicable, sets forth in reasonable detail the facts and circumstances claimed to provide a basis for termination of the Participant’s employment under the provision so indicated. The failure by the Participant or the Employer to set forth in the Notice of Termination any fact or circumstance which contributes to a showing of Employer’s Good Cause or Employee’s Good Cause shall not waive any right of the Employer or the Participant, respectively, hereunder or preclude the Employer or the Participant, respectively, from asserting such fact or circumstance in enforcing the Employer’s or the Participant’s rights hereunder.

3.3. Separation Benefits .

 

(a) If a Participant’s employment is terminated under the circumstances set forth in Section 3.2(a) entitling the Participant to Separation Benefits:

 

  (i) The Employer shall pay to the Participant, in a lump sum in cash within 30 days after the Date of Termination, or on such earlier date as required by applicable law, the sum of (i) the Participant’s Annual Base Salary through the Date of Termination to the extent not theretofore paid, (ii) any bonus attributable to the Company’s most recently completed fiscal year to the extent not previously paid, and (iii) any accrued vacation pay, in each case to the extent not theretofore paid.

 

  (ii) In addition, if the Participant executes the general release of claims described in Section 3.5 within 21 days following the Date of Termination, then, contingent upon the expiration of any revocation period provided in such release and subject to Section 7.6, within 30 days following the Date of Termination, the Participant shall become entitled to the following benefits (the “Separation Benefits”):

(1) The Employer shall pay to the Participant, in a lump sum in cash within 30 days after the Date of Termination, an amount (“Separation Pay”) equal to the product of (A) two and (B) the sum of (x) the Participant’s Annual Base Salary and (y) the Participant’s Target Bonus; provided, however, that the Separation Pay amount pursuant to this clause (b) shall not exceed $4,000,000 per Participant (or, in the case of a Participant who served as the Chief Executive Officer of the Company at any point within the six (6) months prior to the Change of Control (not taking into account any change in title that would qualify as Employee’s Good Cause), $10,000,000).

(2) The Employer also shall pay to the Participant, in a lump sum in cash within 30 days after the Date of Termination, an amount (“Benefits Pay”) equal in value to 24 months of continued health and other insurance benefits provided by the Employer to the Participant immediately prior to the Change of Control (or, if greater, as of the Date of Termination).

 

(b)

If a Participant’s employment is terminated under the circumstances set forth in Section 3.2(a) entitling the Participant to Separation Benefits and such termination of employment occurs prior to the occurrence of a Change of Control, the Participant’s benefits under this Policy as described in this Section 3.3 shall commence upon the occurrence of the Change of Control (or such later date as may be required pursuant to

 

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  Section 409A of the Code) and (i) shall be reduced by any severance compensation or benefits the Participant was entitled to and received as a result of such termination of employment prior to the Change of Control under any other agreement between the Participant and the Company or any other Company plan or policy, and (ii) shall replace and supersede any severance compensation or benefits the Participant would otherwise receive pursuant to such other agreement, plan or policy following the date of the Change of Control.

3.4. Excise Tax . Unless otherwise provided in a Current Employment Agreement, notwithstanding anything in this Policy to the contrary, in the event it shall be determined that any Payment would be subject to the Excise Tax, and if the Participant’s Net After-Tax Benefit would be greater if the amount of the Payments was one dollar less than the smallest amount that would give rise to any Excise Tax (the “Reduced Amount”), then the amount of the Payments will be reduced to the Reduced Amount. The Company and its affiliates shall bear no responsibility for any Excise Tax payable on any Reduced Amount pursuant to a subsequent claim by the Internal Revenue Service or otherwise. For purposes of determining the Reduced Amount under this Section 3.4, amounts otherwise payable to the Participant shall be reduced such that the reduction of compensation to be provided to the Participant as a result of this Section 3.4 is minimized. In applying this principle, the reduction shall be made in a manner consistent with the requirements of Section 409A of the Code and where two economically equivalent amounts are subject to reduction but payable at different times, such amounts shall be reduced on a pro rata basis but not below zero. All determinations required to be made under this Section 3.4, including whether a Reduced Amount or a Net After-Tax Benefit is payable, and the assumptions to be utilized in arriving at such determinations, shall be made by the Company’s independent auditors or such other nationally recognized certified public accounting firm as may be designated by the Company and approved by the Participant (the “Accounting Firm”), which shall provide detailed supporting calculations both to the Company and the Participant within 15 business days of the receipt of notice from the Participant that there has been a Payment, or such earlier time as is requested by the Company. All fees and expenses of the Accounting Firm shall be borne solely by the Company. Any determination by the Accounting Firm shall be binding upon the Company, its Affiliates and the Participant.

3.5. Payment Obligations Absolute . Upon a Change of Control and termination of employment under the circumstances described in Section 3.2(a), subject to Participant’s execution of a general release, the obligations of the Employer to pay or provide the Separation Benefits described in Section 3.3 shall be absolute and unconditional and shall not be affected by any circumstances, including, without limitation, any set-off, counterclaim, recoupment, defense or other right which the Employer may have against any Participant. In no event shall a Participant be obligated to seek other employment or take any other action by way of mitigation of the amounts payable to a Participant under any of the provisions of this Policy, nor shall the amount of any payment or value of any benefits hereunder be reduced by any compensation or benefits earned by a Participant as a result of employment by another employer.

3.6. General Release of Claims; Compliance With Restrictive Covenants . Upon a Change of Control and termination of employment under the circumstances described in Section 3.2(a), the obligations of the Employer to pay or provide the Separation Benefits described in Section 3.3 are contingent on:

 

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(a) the Participant’s (for him/herself, his/her heirs, legal representatives and assigns) agreement to execute a general release in the form and substance to be provided by Employer, releasing the Employer, its affiliated companies and their officers, directors, agents and employees from any claims or causes of action of any kind that the Participant might have against any one or more of them as of the date of the release, regarding his/her employment or the termination of that employment; and

 

(b) the Participant’s continued compliance with any restrictive covenants (including, without limitation, noncompetition, nonsolicitation, nondisclosure, intellectual property assignment and confidentiality covenants), whether set forth in the Current Employment Agreement or elsewhere, that are binding on the Participant following termination of the Participant’s employment with the Employer (or, if no such restrictive covenants are otherwise in effect, as may be set forth in the release described in clause (a) above consistent with the restrictive covenants set forth in the Current Employment Agreements of other Participants), and in the event that a Participant breaches any such restrictive covenant, the Participant shall have no further right to Separation Benefits pursuant to this Policy, and any Separation Benefits previously provided to the Participant shall be subject to clawback by the Employer.

3.7. Non-Exclusivity of Rights; Non-Duplication of Benefits . Nothing in this Policy shall prevent or limit the Participant’s continuing or future participation in any plan, program, policy or practice provided by the Employer and for which the Participant may qualify, nor shall anything herein limit or otherwise affect such rights as the Participant may have under any contract or agreement with the Employer; provided, however, that in the event the Participant becomes eligible for Severance Benefits hereunder, the Participant shall cease to be eligible for severance or termination benefits under any Current Employment Agreement or any other contract or agreement with the Employer that might otherwise apply.

4. Treatment of Equity Awards . In the event that a Participant holds any equity award (whether issued pursuant to the MGM Growth Properties LLC 2016 Omnibus Incentive Plan or otherwise) at the time of a Change of Control, such award shall be eligible to accelerate and vest as and to the extent provided in the applicable plan and/or award agreement governing the terms of such award.

5. Successor to Company

5.1. This Policy shall bind any successor of the Company, its assets or its businesses (whether direct or indirect, by purchase, merger, consolidation or otherwise), in the same manner and to the same extent that the Company or its Subsidiaries would be obligated under this Policy if no succession had taken place.

5.2. In the case of any transaction in which a successor would not by the foregoing provision or by operation of law be bound by this Policy, the Company shall require such successor expressly and unconditionally to assume and agree to perform the Company’s or its Subsidiaries’ obligations under this Policy, in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. The term “Company,” as

 

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used in this Policy, shall mean the Company as hereinbefore defined and any successor or assignee to the business or assets which by reason hereof becomes bound by this Policy.

6. Duration, Amendment and Termination

6.1. Duration . This Policy shall remain in effect until terminated as provided in Section 6.2. Notwithstanding the foregoing, if a Change of Control occurs, this Policy shall continue in full force and effect and shall not terminate or expire until after all Participants who become entitled to any payments or benefits hereunder shall have received such payments or benefits in full.

6.2. Amendment and Termination . The Policy may be terminated or amended in any respect by resolution adopted by the Board prior to the occurrence of a Change of Control. However, after the Board has knowledge of a possible transaction or event that if consummated would constitute a Change of Control, this Policy may not be terminated or amended in any manner which would adversely affect the rights or potential rights of Participants, unless and until the Board has determined that all transactions or events that, if consummated, would constitute a Change of Control have been abandoned and will not be consummated, and, provided that, the Board does not have knowledge of other transactions or events that, if consummated, would constitute a Change of Control. If a Change of Control occurs, the Policy shall no longer be subject to amendment, change, substitution, deletion, revocation or termination in any respect that adversely affects the rights of Participants, and no Participant shall be removed from Policy participation.

7. Miscellaneous

7.1. Legal Fees . The Employer agrees to pay, to the full extent permitted by law, all reasonable legal fees and expenses which the Participant may reasonably incur as a result of any contest by the Employer, the Participant or others of the validity or enforceability of, or liability under, any provision of this Policy or any guarantee of performance thereof (including as a result of any contest by the Participant about the amount of any payment pursuant to this Policy); provided that the Employer shall have no obligation under this Section 7.1 to the extent the resolution of any such contest includes a finding denying, in total, the Participant’s claims in such contest. Such fees and expenses shall be paid within thirty (30) days following an invoice from the Participant to the Company following the initial resolution of any contest.

7.2. Employment Status . This Policy does not constitute a contract of employment or impose on the Participant, the Company or the Participant’s Employer any obligation to retain the Participant as an employee or to change the Employer’s policies regarding termination of employment.

7.3. Tax Withholding . The Employer may withhold from any amounts payable under this Policy such federal, state, local or foreign taxes as shall be required to be withheld pursuant to any applicable law or regulation.

7.4. Validity and Severability . The invalidity or unenforceability of any provision of the Policy shall not affect the validity or enforceability of any other provision of the Policy, which shall remain in full force and effect, and any prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.

 

9

7.5. Governing Law . The validity, interpretation, construction and performance of the Policy shall in all respects be governed by the laws of the State of Delaware, without reference to principles of conflict of law.

7.6. Section 409A of the Code . Notwithstanding anything herein to the contrary:

 

(a) The Policy shall be interpreted, construed and operated to reflect the intent of the Company that all aspects of the Policy shall be interpreted either to be exempt from the provisions of Section 409A of the Code or, to the extent subject to Section 409A of the Code, comply with Section 409A of the Code and any regulations and other guidance thereunder. This Policy may be amended at any time, without the consent of any Participant, to avoid the application of Section 409A of the Code in a particular circumstance or to the extent determined necessary or desirable to satisfy any of the requirements under Section 409A of the Code, but the Employer shall not be under any obligation to make any such amendment. Nothing in the Policy shall provide a basis for any person to take action against the Employer based on matters covered by Section 409A of the Code, including the tax treatment of any award made under the Policy, and the Employer shall not under any circumstances have any liability to any Participant or other person for any taxes, penalties or interest due on amounts paid or payable under the Policy, including taxes, penalties or interest imposed under Section 409A of the Code.

 

(b) To the extent that any payment or benefit pursuant to this Policy constitutes a “deferral of compensation” subject to Section 409A of the Code (after taking into account to the maximum extent possible any applicable exemptions) (a “409A Payment”) treated as payable upon a separation from service (as defined under Section 409A of the Code, then, if on the date of the Participant’s separation from service, the Participant is a specified employee (as defined under Section 409A of the Code), then to the minimum extent required for the Participant not to incur additional taxes pursuant to Section 409A of the Code, no such 409A Payment shall be made to the Participant sooner than the earlier of (i) six (6) months after the Participant’s separation from service; or (ii) the date of the Participant’s death, at which time all such delayed payments shall be paid in lump sum without interest.

 

(c) No 409A Payment payable under this Policy shall be subject to acceleration or to any change in the specified time or method of payment, except as otherwise provided under this Policy and consistent with Section 409A. If under this Policy, a 409A Payment is to be paid in two or more installments, for purposes of Section 409A, each installment shall be treated as a separate payment. Moreover, if the Company determines in good faith that any provision of this Policy has the effect of impermissibly delaying or accelerating any payment schedule initially set forth in any applicable employment agreement or equity award, the applicable provision (or part thereof) of this Policy shall be disregarded and have no force or effect and the payment schedule shall be governed by the applicable provision of the applicable employment agreement or equity award agreement.

7.7. Claim Procedure . If a Participant makes a written request alleging a right to receive Separation Benefits under the Policy or alleging a right to receive an adjustment in benefits being paid under the Policy, the Company shall treat it as a claim for benefits. All claims for

 

10

Separation Benefits under the Policy shall be sent to the General Counsel of the Company and must be received within 30 days after the Date of Termination. If the Company determines that any individual who has claimed a right to receive Separation Benefits under the Policy is not entitled to receive all or a part of the benefits claimed, it will inform the claimant in writing of its determination and the reasons therefore in terms calculated to be understood by the claimant. The notice will be sent within 90 days of the written request, unless the Company determines additional time, not exceeding 90 days, is needed and provides the Participant with notice, during the initial 90-day period, of the circumstances requiring the extension of time and the length of the extension. The notice shall make specific reference to the pertinent Policy provisions on which the denial is based, and describe any additional material or information that is necessary. Such notice shall, in addition, inform the claimant what procedure the claimant should follow to take advantage of the review procedures set forth below in the event the claimant desires to contest the denial of the claim. The claimant may within 90 days thereafter submit in writing to the Administrator a notice that the claimant contests the denial of his or her claim by the Company and desires a further review. The Administrator shall within 60 days thereafter review the claim and authorize the claimant to appear personally and review the pertinent documents and submit issues and comments relating to the claim to the persons responsible for making the determination on behalf of the Administrator. The Administrator will render its final decision with specific reasons therefor in writing and will transmit it to the claimant within 60 days of the written request for review, unless the Administrator determines additional time, not exceeding 60 days, is needed, and so notifies the Participant during the initial 60-day period. The Board may revise the foregoing procedures as it determines necessary to comply with changes in the applicable U.S. Department of Labor regulations.

7.8. Unfunded Status . This Policy is intended to be an unfunded plan and to qualify as a severance pay plan within the meaning of Department of Labor regulations Section 2510.3-2(b). All payments pursuant to the Policy shall be made from the general funds of the Employer and no special or separate fund shall be established or other segregation of assets made to assure payment. No Participant or other person shall have under any circumstances any interest in any particular property or assets of the Employer as a result of being subject to the Policy. Notwithstanding the foregoing, the Board may authorize the creation of trusts or other arrangements to assist in accumulating funds to meet the obligations created under the Policy; provided, however, that, unless the Board otherwise determines, the existence of such trusts or other arrangements is consistent with the “unfunded” status of the Policy.

7.9. Reliance on Adoption of Policy . Subject to Section 6.2, each person who shall become a Participant shall be deemed to have served and continue to serve in such capacity in reliance upon the Change on Control provisions contained in this Policy.

 

11

SCHEDULE A

 

1. James Stewart

 

2. Andrew Chien

 

12

EXHIBIT A

ARBITRATION

This Exhibit A sets forth the methods for resolving disputes should any arise under the Policy, and accordingly, this Exhibit A shall be considered a part of the Policy.

 

1. Except for a claim by either Participant or the Company for injunctive relief where such would be otherwise authorized by law, any controversy or claim arising out of or relating to the Policy or the breach hereof including without limitation any claim involving the interpretation or application of the Policy, shall be submitted to binding arbitration in accordance with the employment arbitration rules then in effect of the Judicial Arbitration and Mediation Service (“JAMS”), to the extent not inconsistent with this paragraph. This Exhibit A covers any claim Participant might have against the Company, any officer, director, employee, or agent of the Company, or any of the Company’s subsidiaries, divisions, and affiliates, and all successors and assigns of any of them. The promises by the Company and Participant to arbitrate differences, rather than litigate them before courts or other bodies, provide consideration for each other, in addition to other consideration provided under the Policy.

 

2. Claims Subject to Arbitration : This Exhibit A contemplates mandatory arbitration to the fullest extent permitted by law. Only claims that are justiciable under applicable state or federal law are covered by this Exhibit A. Such claims include any and all alleged violations of any state or federal law whether common law, statutory, arising under regulation or ordinance, or any other law, brought by any current or former employees.

 

3. Non-Waiver of Substantive Rights : This Exhibit A does not waive any rights or remedies available under applicable statutes or common law. However, it does waive Participant’s right to pursue those rights and remedies in a judicial forum. By accepting benefits under the Policy, the Participant shall be deemed to have voluntarily agreed to arbitrate his or her claims covered by this Exhibit A.

 

4. Time Limit to Pursue Arbitration; Initiation : To ensure timely resolution of disputes, Participant and the Company must initiate arbitration within the statute of limitations (deadline for filing) provided for by applicable law pertaining to the claim. The failure to initiate arbitration within this time limit will bar any such claim. The parties understand that the Company and Participant are waiving any longer statutes of limitations that would otherwise apply, and any aggrieved party is encouraged to give written notice of any claim as soon as possible after the event(s) in dispute so that arbitration of any differences may take place promptly. The parties agree that the aggrieved party must, within the time frame provided by this Exhibit A, give written notice of a claim. In the event such notice is to be provided to the Company, the Participant shall provide a copy of such notice of a claim to the Company’s designated legal counsel for purposes of arbitration. Written notice shall identify and describe the nature of the claim, the supporting facts and the relief or remedy sought.

 

13

5. Selecting an Arbitrator : This Exhibit A mandates Arbitration under the then current rules of the Judicial Arbitration and Mediation Service (JAMS) regarding employment disputes. The arbitrator shall be either a retired judge or an attorney experienced in employment law and licensed to practice in the state in which arbitration is convened. The parties shall select one arbitrator from among a list of three qualified neutral arbitrators provided by JAMS. If the parties are unable to agree on the arbitrator, each party shall strike one name and the remaining named arbitrator shall be selected.

 

6. Representation/Arbitration Rights and Procedures :

 

  a. Participant may be represented by an attorney of his/her choice at his/her own expense.

 

  b. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of Nevada (without regard to its choice of law provisions) and/or federal law when applicable. In all cases, this Exhibit A shall provide for the broadest level of arbitration of claims between the Company and Participant under Nevada or applicable federal law. The arbitrator is without jurisdiction to apply any different substantive law or law of remedies.

 

  c. The arbitrator shall have no authority to award non-economic damages or punitive damages except where such relief is specifically authorized by an applicable state or federal statute or common law. In such a situation, the arbitrator shall specify in the award the specific statute or other basis under which such relief is granted.

 

  d. The applicable law with respect to privilege, including attorney-client privilege, work product, and offers to compromise must be followed.

 

  e. The parties shall have the right to conduct reasonable discovery, including written and oral (deposition) discovery and to subpoena and/or request copies of records, documents and other relevant discoverable information consistent with the procedural rules of JAMS. The arbitrator shall decide disputes regarding the scope of discovery and shall have authority to regulate the conduct of any hearing and/or trial proceeding. The arbitrator shall have the right to entertain a motion to dismiss and/or motion for summary judgment.

 

  f. The parties shall exchange witness lists at least 30 days prior to the trial/hearing procedure. The arbitrator shall have subpoena power so that either Participant or the Company may summon witnesses. The arbitrator shall use the Federal Rules of Evidence. Both parties have the right to file a post hearing brief. Any party, at its own expense, may arrange for and pay the cost of a court reporter to provide a stenographic record of the proceedings.

 

  g. Any arbitration hearing or proceeding shall take place in private, not open to the public, in Las Vegas, Nevada.

 

7.

Arbitrator’s Award : The arbitrator shall issue a written decision containing the specific issues raised by the parties, the specific findings of fact, and the specific conclusions of

 

14

  law. The award shall be rendered promptly, typically within 30 days after conclusion of the arbitration hearing, or the submission of post-hearing briefs if requested. The arbitrator may not award any relief or remedy in excess of what a court could grant under applicable law. The arbitrator’s decision is final and binding on both parties. Judgment upon an award rendered by the arbitrator may be entered in any court having competent jurisdiction.

 

  a. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Exhibit A and to enforce an arbitration award.

 

  b. In the event of any administrative or judicial action by any agency or third party to adjudicate a claim on behalf of Participant which is subject to arbitration under this Exhibit A, Participant hereby waives the right to participate in any monetary or other recovery obtained by such agency or third party in any such action, and Participant’s sole remedy with respect to any such claim shall be any award decreed by an arbitrator pursuant to the provisions of this Exhibit A.

 

8. Fees and Expenses : The Company shall be responsible for paying any filing fee and the fees and costs of the arbitrator; provided, however, that if Participant is the party initiating the claim, Participant will contribute an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which Participant is (or was last) employed by the Company. Participant and the Company shall each pay for their own expenses, attorney’s fees (a party’s responsibility for his/her/its own attorney’s fees is only limited by any applicable statute specifically providing that attorney’s fees may be awarded as a remedy), and costs and fees regarding witness, photocopying and other preparation expenses. If any party prevails on a statutory claim that affords the prevailing party attorney’s fees and costs, or if there is a written agreement providing for attorney’s fees and/or costs, the arbitrator may award reasonable attorney’s fees and/or costs to the prevailing party, applying the same standards a court would apply under the law applicable to the claim(s).

 

9. The arbitration provisions of this Exhibit A shall survive the termination of Participant’s employment with the Company. These arbitration provisions can only be modified or revoked in a writing signed by both parties and which expressly states an intent to modify or revoke the provisions of this Exhibit A.

 

10. The arbitration provisions of this Exhibit A do not alter or affect the termination provisions of the Policy.

 

11. Capitalized terms not defined in this Exhibit A shall have the same definition as in the Policy to which this is Exhibit A.

 

12. If any provision of this Exhibit A is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of Exhibit A. All other provisions shall remain in full force and effect.

 

15

ACKNOWLEDGMENT

BOTH PARTIES ACKNOWLEDGE THAT: THEY HAVE CAREFULLY READ THIS EXHIBIT A IN ITS ENTIRETY, THEY UNDERSTAND ITS TERMS, EXHIBIT A CONSTITUTES A MATERIAL TERM AND CONDITION OF POLICY TO WHICH IT IS EXHIBIT A, AND THEY AGREE TO ABIDE BY ITS TERMS.

The parties also specifically acknowledge that by accepting benefits under the Policy and thereby agreeing to the terms of this Exhibit A, they are waiving the right to pursue claims covered by this Exhibit A in a judicial forum and instead agree to arbitrate all such claims before an arbitrator without a court or jury. It is specifically understood that this Exhibit A does not waive any rights or remedies which are available under applicable state and federal statutes or common law. Both parties enter into this Exhibit A voluntarily and not in reliance on any promises or representation by the other party other than those contained in the Agreement or in this Exhibit A.

Participant further acknowledges that Participant has been given the opportunity to discuss this Exhibit A with Participant’s private legal counsel and that Participant has availed himself/herself of that opportunity to the extent Participant wishes to do so.

*        *        *

 

16

Exhibit 10.9

MGM Growth Properties Operating Partnership LP

Nonqualified Deferred Compensation Plan

Master Plan Document

Effective April 19, 2016

TABLE OF CONTENTS

 

         Page  

Purpose

       1   

ARTICLE 1

 

DEFINITIONS

     1   

ARTICLE 2

 

SELECTION, ENROLLMENT, ELIGIBILITY

     5   

2.1

 

Selection by Committee

     5   

2.2

 

Enrollment Requirements

     5   

2.3

 

Eligibility; Commencement of Participation

     6   

2.4

 

Termination of Participation and/or Deferrals

     6   

ARTICLE 3

 

DEFERRAL COMMITMENTS/CREDITING/TAXES

     6   

3.1

 

Minimum Deferrals

     6   

3.2

 

Maximum Deferrals

     7   

3.3

 

Election to Defer; Effect of Election Form

     7   

3.4

 

Withholding of Annual Deferral Amounts

     7   

3.5

 

Vesting

     8   

3.6

 

Crediting/Debiting of Account Balances

     8   

3.7

 

FICA and Other Taxes

     9   

ARTICLE 4

 

SHORT-TERM PAYOUT; UNFORESEEABLE FINANCIAL EMERGENCIES; WITHDRAWAL ELECTIONS; SMALL SUM CASHOUTS

     9   

4.1

 

Short-Term Payout

     9   

4.2

 

Other Benefits Take Precedence Over Short-Term

     10   

4.3

 

Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies

     10   

4.4

 

Small Sum Cashouts

     10   

ARTICLE 5

 

RETIREMENT BENEFIT

     11   

5.1

 

Retirement Benefit

     11   

5.2

 

Payment of Retirement Benefit

     11   

5.3

 

Death Prior to Completion of Retirement Benefit

     11   

ARTICLE 6

 

ARTICLE 6 PRE-RETIREMENT SURVIVOR BENEFIT

     11   

6.1

 

Pre-Retirement Survivor Benefit

     11   

6.2

 

Payment of Pre-Retirement Survivor Benefit

     11   

ARTICLE 7

 

TERMINATION BENEFIT

     12   

7.1

 

Termination Benefit

     12   

7.2

 

Payment of Termination Benefit

     12   

7.3

 

Death Prior to Completion of Termination Benefit

     12   

ARTICLE 8

 

DISABILITY BENEFIT

     13   

8.1

 

Disability Benefit

     13   

ARTICLE 9

 

BENEFICIARY DESIGNATION

     13   

9.1

 

Beneficiary

     13   

9.2

 

Beneficiary Designation; Change; Spousal Consent

     13   

9.3

 

Acknowledgment

     13   

9.4

 

No Beneficiary Designation

     13   

 

i

9.5

 

Doubt as to Beneficiary

     14   

9.6

 

Discharge of Obligations

     14   

ARTICLE 10

 

LEAVE OF ABSENCE

     14   

10.1

 

Leaves of Absence

     14   

ARTICLE 11

 

TERMINATION, AMENDMENT OR MODIFICATION

     14   

11.1

 

Termination

     14   

11.2

 

Amendment

     14   

11.3

 

Plan Agreement

     15   

11.4

 

Effect of Payment; Non-Discretionary Cashout

     15   

ARTICLE 12

 

ADMINISTRATION

     15   

12.1

 

Committee Duties

     15   

12.2

 

Agents

     15   

12.3

 

Binding Effect of Decisions

     15   

12.4

 

Indemnity of Committee

     16   

12.5

 

Employer Information

     16   

ARTICLE 13

 

OTHER BENEFITS AND AGREEMENTS

     16   

13.1

 

Coordination with Other Benefits

     16   

ARTICLE 14

 

CLAIMS PROCEDURES

     16   

14.1

 

Presentation of Claim

     16   

14.2

 

Notification of Decision

     16   

14.3

 

Review of a Denied Claim

     17   

14.4

 

Decision on Review

     17   

14.5

 

Legal Action

     17   

ARTICLE 15

 

TRUST

     17   

15.1

 

Establishment of the Trust

     17   

15.2

 

Interrelationship of the Plan and the Trust

     18   

15.3

 

Distributions from the Trust

     18   

15.4

 

Investment of Trust Assets

     18   

15.5

 

No Claim on Trust Assets

     18   

ARTICLE 16

 

MISCELLANEOUS

     18   

16.1

 

Status of Plan

     18   

16.2

 

Unsecured General Creditor

     19   

16.3

 

Employer’s Liability

     19   

16.4

 

Nonassignability

     19   

16.5

 

Not a Contract of Employment

     19   

16.6

 

Furnishing Information

     19   

16.7

 

Terms

     19   

16.8

 

Captions

     20   

16.9

 

Governing Law

     20   

16.10

 

Notice

     20   

16.11

 

Successors

     20   

16.12

 

Spouse’s Interest

     20   

16.13

 

Validity

     20   

 

ii

16.14

 

Incompetent

     20   

16.15

 

Court Order

     21   

16.16

 

Distribution in the Event of Taxation

     21   

16.17

 

Legal Fees To Enforce Rights After Change in Control

     21   

 

iii

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP

NONQUALIFIED DEFERRED COMPENSATION PLAN

Effective April 19, 2016

Purpose

The purpose of this Plan is to provide specified benefits to a select group of management and highly compensated Employees who contribute materially to the continued growth, development and future business success of MGM Growth Properties Operating Partnership LP, a Delaware limited partnership, and its subsidiaries that sponsor this Plan. This Plan shall be unfunded for tax purposes and for purposes of Title I of ERISA.

ARTICLE 1

Definitions

For purposes of this Plan, unless otherwise clearly apparent from the context, the following phrases or terms shall have the following indicated meanings:

“ Account Balance ” shall mean, with respect to a Participant, a credit on the records of the Employer equal to the Deferral Account balance. The Account Balance shall be a bookkeeping entry only and shall be utilized solely as a device for the measurement and determination of the amounts to be paid to a Participant, or the Participant’s designated Beneficiary, pursuant to this Plan.

“ Annual Deferral Amount ” shall mean that portion of a Participant’s Base Annual Salary and Bonus that a Participant elects to have, and is, deferred in accordance with Article 3, for any one Plan Year. In the event of a Participant’s Retirement, Disability, death or a Termination of Employment prior to the end of a Plan Year, such year’s Annual Deferral Amount shall be the actual amount withheld prior to such event.

“ Base Annual Salary ” shall mean the annual cash compensation relating to services performed during any calendar year, whether or not paid in such calendar year or included on the Federal Income Tax Form W-2 for such calendar year, excluding bonuses, commissions, overtime, fringe benefits, equity or equity-based incentives, relocation expenses, incentive payments, non-monetary awards and other fees and automobile and other allowances paid to a Participant for employment services rendered (whether or not such allowances are included in the Employee’s gross income). Base Annual Salary shall be calculated before reduction for compensation voluntarily deferred or contributed by the Participant pursuant to all qualified or non-qualified plans of any Employer and shall be calculated to include amounts not otherwise included in the Participant’s gross income under Code Sections 125, 402(e)(3), 402(h), or 403(b) pursuant to plans established by any Employer; provided, however, that all such amounts will be included in compensation only to the extent that, had there been no such plan, the amount would have been payable in cash to the Employee.

“ Beneficiary ” shall mean one or more persons, trusts, estates or other entities, designated

 

1

in accordance with Article 9, that are entitled to receive benefits under this Plan upon the death of a Participant or the death of a predecessor Beneficiary receiving benefits under the Plan.

“ Beneficiary Designation Form ” shall mean the form established from time to time by the Committee that a Participant completes, signs and returns to the Committee to designate one or more Beneficiaries.

“ Board ” shall mean the board of managers of MGM Growth Properties OP GP LLC, a Delaware limited liability company, which is the general partner of the Company.

“ Bonus ” shall mean any cash compensation, other than Base Salary, earned by a Participant for services rendered during a Plan Year, under any Employer’s bonus, commission or other cash incentive arrangements (whether written or oral).

“ Change of Control ” shall mean, with respect to (x) MGP or (y) provided that it controls, is controlled by or is under common control with MGP at the relevant time, MGM (each of (x) and (y), a “ Referenced Entity ”), the first to occur of:

(1) the date that a reorganization, merger, consolidation, recapitalization, or similar transaction (other than a spinoff, exchange offer or similar transaction to or with the applicable Referenced Entity’s public shareholders) is consummated, unless: (i) at least 50% of the outstanding voting securities of the surviving or resulting entity (including, without limitation, an entity which as a result of such transaction owns MGP either directly or through one or more subsidiaries) (“Resulting Entity”) are beneficially owned, directly or indirectly, by the persons who were the beneficial owners of the outstanding voting securities of the Corporation immediately prior to such transaction in substantially the same proportions as their beneficial ownership, immediately prior to such transaction, of the outstanding voting securities of the Corporation and (ii) immediately following such transaction no person or persons acting as a group beneficially owns capital stock of the Resulting Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Resulting Entity;

(2) the date that a majority of members of the Referenced Entity’s Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Referenced Entity’s Board before the date of the appointment or election; provided that no individual shall be considered to be so endorsed if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Referenced Entity’s Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest;

(3) the date that any one person, or persons acting as a group, acquires (or has or have acquired as of the date of the most recent acquisition by such person or persons) beneficial ownership of stock of the Referenced Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Referenced Entity; or

(4) the date that any one person acquires, or persons acting as a group acquire (or has or have acquired as of the date of the most recent acquisition by such person or persons), assets

 

2

from the Referenced Entity that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value of all of the assets of the Referenced Entity immediately before such acquisition or acquisitions.

For the avoidance of doubt, there can only be one Change of Control for purposes of the Plan.

“ Claimant ” shall have the meaning set forth in Section 14.1.

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

“ Committee ” shall mean the committee described in Article 12.

“ Company ” shall mean MGM Growth Properties Operating Partnership LP, a Delaware limited partnership, and any successor to all or substantially all of the Company’s assets or business.

“ Deferral Account ” shall mean (a) the sum (i) the aggregate amount of all of a Participant’s Annual Deferral Amounts and (ii) amounts credited or debited in accordance with all applicable crediting provisions of this Plan that relate to the Participant’s Deferral Account less (b) all distributions made to the Participant or the Participant’s Beneficiary pursuant to this Plan that relate to the Participant’s Deferral Account.

“ Disability ” shall mean that a Participant (a) is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, as certified by a licensed physician, or (b) is receiving income replacement benefits for a period of not less than 3 months under an accident and health plan covering employees of the Participant’s Employer by reason of any medically determinable physical or mental impairment which can be expected to result in death or can be expected to last for a continuous period of not less than 12 months, as certified by a licensed physician in each case.

“ Disability Benefit ” shall mean the benefit set forth in Article 8.

“ Election Form ” shall mean the form established from time to time by the Committee that a Participant completes, signs and returns to the Committee to make an election under the Plan.

“ Employee ” shall mean a person who is an employee of any Employer.

“ Employer(s) ” shall mean the Company and/or any of its subsidiaries (now in existence or hereafter formed or acquired) that have been selected by the Board to participate in the Plan and have adopted the Plan as a sponsor.

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

 

3

“ MGM ” shall mean MGM Resorts International, a Delaware corporation.

“ MGP ” shall mean MGM Growth Properties LLC, a Delaware limited liability company.

“ Participant ” shall mean any Employee (a) who is selected to participate in the Plan, (b) who elects to participate in the Plan, (c) who signs a Plan Agreement, an Election Form and a Beneficiary Designation Form, (d) whose signed Plan Agreement, Election Form and Beneficiary Designation Form are accepted by the Committee, (e) who commences participation in the Plan, and (f) whose Plan Agreement has not terminated. A spouse or former spouse of a Participant, as such, shall not be treated as a Participant in the Plan or have an account balance under the Plan, even if the Participant has an interest in the Participant’s benefits under the Plan in accordance with Article 5 or 6 of the Plan, or as a result of applicable law or property settlements resulting from legal separation or divorce.

“ Plan ” shall mean the MGM Growth Properties Operating Partnership LP Nonqualified Deferred Compensation Plan, which shall be evidenced by this instrument and by each Plan Agreement, as they may be amended from time to time.

“ Plan Agreement ” shall mean a written agreement, as may be amended from time to time, which is entered into by and between an Employer and a Participant. Each Plan Agreement executed by a Participant and the Participant’s Employer shall provide for the entire benefit to which such Participant is entitled under the Plan; should there be more than one Plan Agreement, the Plan Agreement bearing the latest date of acceptance by the Employer shall supersede all previous Plan Agreements in their entirety and shall govern such entitlement. The terms of any Plan Agreement may be different for any Participant, and any Plan Agreement may provide additional benefits not set forth in the Plan or limit the benefits otherwise provided under the Plan; provided, however, that any such additional benefits or benefit limitations must be agreed to by both the Employer and the Participant.

“ Plan Year ” shall mean (a) the short year commencing April 19, 2016, and continuing through December 31, 2016, and (b) January 1 of each calendar year beginning on or after January 1, 2017, and continuing through December 31 of such calendar year, while the Plan is in effect.

“ Pre-Retirement Survivor Benefit ” shall mean the benefit set forth in Article 6.

“ Quarterly Installment Method ” shall mean quarterly installment payments over the number of quarters selected by the Participant in accordance with this Plan, calculated as follows: the Account Balance of the Participant shall be calculated as of the close of business on the last business day of the calendar quarter in which the Participant becomes entitled to a quarterly installment payment under this Plan. The quarterly installment shall be calculated by multiplying this balance by a fraction, the numerator of which is one, and the denominator of which is the remaining number of quarterly payments due the Participant. By way of example, if the Participant elects 40 quarters, the first payment shall be 1/40 of the Account Balance, calculated as described in this definition. For the following calendar quarter, the payment shall be 1/39 of the Account Balance, calculated as described in this definition. Continuing Payments pursuant to the Quarterly Installment Method shall be made no later than 60 days following the

 

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last business day of the applicable calendar quarter for which the installment payment is made.

“ Retirement ”, “ Retire(s) ” or “ Retired ” shall mean separation from service (as defined in accordance with Code Section 409A and the regulations issued thereunder) from all Employers for any reason other than an authorized leave of absence, death or Disability on or after the earlier of the attainment of (a) age sixty-five (65) or (b) age fifty-five (55) with ten (10) Years of Service.

“ Retirement Benefit ” shall mean the benefit set forth in Article 5.

“ Short-Term Payout ” shall mean the payout set forth in Section 4.1.

“ Termination Benefit ” shall mean the benefit set forth in Article 7.

“ Termination of Employment ” shall mean separation from service (as defined in accordance with Code Section 409A and the regulations issued thereunder) from all Employers, voluntarily or involuntarily, for any reason other than Retirement, Disability or death.

“ Trust ” shall mean one or more trusts established in accordance with Section 15.1.

“ Unforeseeable Financial Emergency ” shall mean severe financial hardship to a Participant resulting from an illness or accident of the Participant, the Participant’s spouse, or a dependent (as defined in Section 152(a) of the Code) of the Participant, loss of the Participant’s property due to casualty, or other similar extraordinary and unforeseeable circumstances arising as a result of events beyond the control of the Participant, as determined in the sole discretion of the Committee consistent with Code Section 409A.

“ Years of Service ” shall mean the total number of full years of employment in which a Participant has been employed by one or more Employers. For purposes of this definition, a year of employment shall be a 365-day period (or 366-day period in the case of a leap year) that, for the first year of employment, commences on the Employee’s date of hiring and that, for any subsequent year, commences on an anniversary of that hiring date. Any partial year of employment shall not be counted.

ARTICLE 2

Selection, Enrollment, Eligibility

2.1 Selection by Committee . Participation in the Plan shall be limited to a select group of management and highly compensated Employees, as determined by the Committee in its sole discretion. From that group, the Committee shall select, in its sole discretion, Employees to participate in the Plan, who upon selection become eligible to participate in the Plan. Notwithstanding the foregoing, an Employee cannot be selected to be a participant in the Plan until the Employee has been employed with an Employer for at least 90 days.

2.2 Enrollment Requirements . As a condition to participation, each selected Employee shall complete, execute and return to the Committee, in a manner determined by the Committee, a Plan Agreement, an Election Form and a Beneficiary Designation Form, all by

 

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October 1 st of the Plan Year in which the Employee becomes eligible to participate in the Plan. If an Employee is selected to participate in the Plan after October 1 st of a given Plan Year, the Employee shall complete the required enrollment materials by October 1 st of the Plan Year following the Plan Year in which the Employee becomes eligible to participate in the Plan. Notwithstanding anything to the contrary in this Section 2.2, each Employee selected to participate in the short 2016 Plan Year shall complete, execute and return the required enrollment materials within 30 days following the effective date of this Plan (or, if later, within 30 days following the date the Employee first becomes eligible to participate in this Plan), and any elections shall be made with respect to Base Annual Salary and/or Bonus earned following the date the elections contained within the enrollment materials become effective. In addition, the Committee shall establish from time to time such other enrollment requirements as it determines in its sole discretion are necessary.

2.3 Eligibility; Commencement of Participation . Subject to the next sentence, an Employee selected to participate in the Plan in accordance with Section 2.1 by October 1 st of a given Plan Year shall commence participation in the Plan as of the first day of the Plan Year following the Plan Year in which the Committee selects that Employee to participate in the Plan. However, if the Employee fails to return the required enrollment materials by October 1 st of the Plan Year in which the Employee was selected to participate in the Plan and thus fails to meet the requirements of Section 2.2, that Employee shall not be eligible to participate in the Plan until the subsequent Plan Year, subject to the delivery to and acceptance by the Committee of the required documents by October 1 st of the Plan Year following the Plan Year in which the Employee was selected to participate in the Plan. An Employee selected to participate in the Plan in accordance with Section 2.1 after October 1 st of a given Plan Year shall not be eligible to commence participation in the Plan as of the first day of the Plan Year following selection but instead will become eligible to participate in the Plan in the following Plan Year, subject to the Employee meeting the applicable requirements of Section 2.2.

2.4 Termination of Participation and/or Deferrals . If the Committee determines in good faith that a Participant no longer qualifies as a member of a select group of management or highly compensated employees, as membership in such group is determined in accordance with Sections 201(2), 301(a)(3) and 401(a)(1) of ERISA, the Committee shall have the right, in its sole discretion, to prevent the Participant from making future deferral elections.

ARTICLE 3

Deferral Commitments/Crediting/Taxes

3.1 Minimum Deferrals . For each Plan Year, a Participant may elect to defer, as the Participant’s Annual Deferral Amount in whole percentages, Base Annual Salary and/or Bonus in the following minimum percentages for each deferral elected:

 

Deferral    Minimum Amount

Base Annual Salary

   3%

Bonus

   3%

 

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If an election is made for less than the stated minimum amounts, or if no election is made, the amount deferred shall be zero.

3.2 Maximum Deferrals . For each Plan Year, a Participant may elect to defer, as the Participant’s Annual Deferral Amount in whole percentages, Base Annual Salary and/or Bonus up to the following maximum percentages for each deferral elected:

 

Deferral    Maximum Amount

Base Annual Salary

   50%

Bonus

   75%

Notwithstanding the foregoing, if a Participant first becomes a Participant after the first day of a Plan Year, the maximum Annual Deferral Amount, with respect to Base Annual Salary and Bonus, shall be limited to the amount of such compensation earned by the Participant after the Participant commences participation in the Plan in accordance with Section 2.3 above.

3.3 Election to Defer; Effect of Election Form.

(a) First Plan Year . In connection with a Participant’s commencement of participation in the Plan, the Participant shall make an irrevocable deferral election for the Plan Year in which the Participant commences participation in the Plan, along with such other elections as the Committee deems necessary or desirable under the Plan. For these elections to be valid, the Election Form must be completed and signed by the Participant, timely delivered to the Committee (in accordance with Section 2.2) and accepted by the Committee.

(b) Subsequent Plan Years . For each succeeding Plan Year, an irrevocable deferral election for that Plan Year, and such other elections as the Committee deems necessary or desirable under the Plan, shall be made by timely delivering to the Committee, in accordance with its rules and procedures, before the end of the Plan Year preceding the Plan Year for which the election is made (or such earlier time as the Committee may establish, in its sole discretion), a new Election Form. If no such Election Form is timely delivered for a Plan Year, the Annual Deferral Amount shall be zero for that Plan Year.

(c) Performance-Based Compensation . Notwithstanding the foregoing, the Committee may, in its sole discretion, determine that an irrevocable deferral election pertaining to performance-based compensation may be made by timely delivering a new Election Form to the Committee, in accordance with its rules and procedures, no later than six (6) months before the end of the performance service period. “ Performance-based compensation ” shall be compensation based on services performed over a period of at least twelve (12) months, in accordance with Code Section 409A and related guidance.

3.4 Withholding of Annual Deferral Amounts . For each Plan Year, the Base Annual Salary portion of the Annual Deferral Amount shall be withheld from each regularly scheduled Base Annual Salary payroll in the percentage elected by the Participant. The Bonus portion of the Annual Deferral Amount shall be withheld at the time the Bonus is paid to the Participant.

 

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3.5 Vesting . A Participant shall at all times be 100% vested in the Participant’s Deferral Account.

3.6 Crediting/Debiting of Account Balances . In accordance with, and subject to, the rules and procedures that are established from time to time by the Committee, in its sole discretion, amounts shall be credited or debited to a Participant’s Account Balance in accordance with the following rules:

(a) Election of Measurement Funds . A Participant, in connection with the Participant’s initial deferral election in accordance with Section 3.3(a), shall elect, on the Election Form, one or more Measurement Fund(s) (as described in Section 3.6(c)) to be used to determine the additional amounts to be credited or debited to the Participant’s Account Balance. A Participant may (but is not required to) elect to add or delete one or more available Measurement Fund(s) to be used to determine the additional amounts to be credited or debited to the Participant’s Account Balance, or to change the portion of the Participant’s Account Balance allocated to each previously or newly elected Measurement Fund. A Participant may elect to make such a change by submitting an Election Form, whether written or electronic (as determined by the Committee from time to time and in its sole discretion), to the Committee. Any election so made and accepted by the Committee shall apply no later than the third business day following the Committee’s acceptance of the election. Any such election shall continue to apply, unless subsequently changed in accordance with this Section 3.6(a).

(b) Proportionate Allocation . In making any election described in Section 3.6(a), the Participant shall specify on the Election Form, in increments of one percentage point (1%), the percentage of the Participant’s Account Balance to be allocated to a Measurement Fund (as if the Participant were making an investment in that Measurement Fund with that portion of the Participant’s Account Balance).

(c) Measurement Funds . A Participant may elect one or more measurement funds (the “ Measurement Funds ”) from among those selected by the Committee for the purpose of crediting or debiting additional amounts to the Participant’s Account Balance. As necessary, the Committee may, in its sole discretion, discontinue, substitute or add Measurement Funds. Each such action will take effect as of the first day of the calendar quarter that follows by thirty (30) days or more the day on which the Committee gives Participants advance written notice of such change. In selecting the Measurement Funds that are available from time to time, neither the Committee nor any Employer shall be liable to any Participant for such selection or adding, deleting or continuing any available Measurement Fund.

(d) Crediting or Debiting Method . The performance of each elected Measurement Fund (either positive or negative) will be reasonably determined by the Committee. A Participant’s Account Balance shall be credited or debited on a daily basis based on the performance of each Measurement Fund selected by the Participant.

(e) No Actual Investment . Notwithstanding any other provision of this Plan that may be interpreted to the contrary, the Measurement Funds are to be used for measurement purposes only, and a Participant’s election of any such Measurement Fund, the allocation to the Participant’s Account Balance thereof, the calculation of additional amounts and the crediting or

 

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debiting of such amounts to a Participant’s Account Balance shall not be considered or construed in any manner as an actual investment of the Participant’s Account Balance in any such Measurement Fund. In the event that the Company or the Trustee (as that term is defined in the Trust), in its sole discretion, decides to invest funds in any or all of the Measurement Funds, no Participant shall have any rights in or to such investments themselves. Without limiting the foregoing, a Participant’s Account Balance shall at all times be a bookkeeping entry only and shall not represent any investment made on the Participant’s behalf by the Company or the Trust; and the Participant shall at all times remain an unsecured creditor of the Company.

(f) Employer Discretion . Notwithstanding the foregoing provisions of this Section 3.6, the Committee shall retain the overriding discretion regarding the Participant’s designation of Measurement Funds under this Section 3.6. If a Participant fails to designate any Measurement Fund under this Section 3.6, the Participant shall be deemed to have elected the money market fund, or such other fund as determined from time to time by the Committee in its sole discretion.

(g) Selection Results . The Participant shall bear full responsibility for all results associated with the Participant’s selection of Measurement Funds under this Section 3.6, and the Employers shall have no responsibility or liability with respect to the Participant’s selection of such Measurement Funds.

3.7 FICA and Other Taxes.

(a) Annual Deferral Amounts . For each Plan Year in which an Annual Deferral Amount is being withheld from a Participant, the Participant’s Employer(s) shall withhold from that portion of the Participant’s Base Annual Salary and Bonus that is not being deferred, in a manner determined by the Employer(s), the Participant’s share of FICA and other employment taxes on such Annual Deferral Amount. If necessary, the Committee may reduce the Annual Deferral Amount in order to comply with this Section 3.7.

(b) Distributions . The Participant’s Employer(s), or the Trustee of the Trust, shall withhold from any payments made to a Participant under this Plan all federal, state and local income, employment and other taxes required to be withheld by the Employer(s), or the Trustee of the Trust, in connection with such payments, in amounts and in a manner to be determined in good faith in the sole discretion of the Employer(s) and the Trustee of the Trust.

ARTICLE 4

Short-Term Payout; Unforeseeable Financial Emergencies;

Withdrawal Elections; Small Sum Cashouts

4.1 Short-Term Payout .

(a) In connection with each election to defer an Annual Deferral Amount, a Participant may irrevocably elect to receive a future “ Short-Term Payout ” from the Plan with respect to such Annual Deferral Amount. The Short-Term Payout shall be a lump sum payment in an amount that is equal to the Annual Deferral Amount plus amounts credited or debited in the manner provided in Section 3.6 above on that amount, determined at the time that the Short-

 

9

Term Payout becomes payable. Subject to the terms and conditions of this Plan, each Short-Term Payout elected shall be paid out during a 60 day period commencing immediately after the last day of any Plan Year designated by the Participant that is at least five Plan Years after the Plan Year in which the Annual Deferral Amount is actually deferred. By way of example, if a five-year Short-Term Payout is elected for Annual Deferral Amounts that are deferred in the Plan Year commencing January 1, 2017, the five-year Short-Term Payout would become payable during a 60 day period commencing January 1, 2023.

(b) A Participant may make a one time election to postpone a Short-Term Payout described above, and have such amount paid out during a sixty (60) day period commencing immediately after an allowable alternative distribution date designated by the Participant in accordance with the following rules. To make this one time election, the Participant must submit a new Election Form to the Committee in accordance with the following criteria: (i) the Election Form is submitted at least 1 year prior to the schedule distribution date of the Short-Term Payout, (ii) the election cannot take effect until at least 12 months after the date on which the election is made, (iii), the first payment with respect to which such election is made must be deferred for a period of 5 years from the date such payment would otherwise have been made, (iv) the election cannot accelerate the payment of such benefit and (v) the election is accepted by the Committee in its sole discretion.

4.2 Other Benefits Take Precedence Over Short-Term . Should an event occur that triggers a benefit under Article 5, 6, 7 or 8, any Annual Deferral Amount, plus amounts credited or debited thereon, that is subject to a Short-Term Payout election under Section 4.1 shall not be paid in accordance with Section 4.1 but shall be paid in accordance with the other applicable Article. Notwithstanding the foregoing, the Committee shall interpret this Section in a manner that is consistent with Code Section 409A and the regulations thereunder, including without limitation guidance issued in connection with that Section.

4.3 Withdrawal Payout/Suspensions for Unforeseeable Financial Emergencies . If the Participant experiences an Unforeseeable Financial Emergency, the Participant may petition the Committee to (a) suspend any deferrals required to be made by a Participant during the remaining portion of the Plan Year and/or (b) receive a partial or full payout from the Plan. The payout shall not exceed the lesser of the Participant’s Account Balance, calculated as if such Participant were receiving a Termination Benefit, or the amount necessary to satisfy the Unforeseeable Financial Emergency plus amounts necessary to pay taxes reasonably anticipated as a result of the distribution, after taking into account the extent to which such hardship is or may be relieved through reimbursement or compensation by insurance or otherwise or by liquidation of the participant’s assets (to the extent the liquidation of such assets would not itself cause severe financial hardship). If, in the sole discretion of the Committee, the petition for a suspension and/or payout is approved, suspension shall take effect upon the date of approval and any payout shall be made within 60 days of the date of approval.

4.4 Small Sum Cashouts . The Company may elect in writing to effect a cashout pursuant to Treasury Regulation Section 1.409A-3(j)(4)(v), where the Account Balance under the Plan (together with account balances of any other aggregated arrangements) do not exceed the applicable dollar amount under Code Section 402(g)(1)(B) (or a lower threshold set by the Company in such election). An Employee whose entire Account Balance has been distributed in

 

10

a lump sum pursuant to this Section 4.4 and who recommences making deferral elections shall be treated for the Plan Year of such recommencement as a new Participant under the Plan and shall for such Plan Year be eligible to make a new payout election with respect to such new participation.

ARTICLE 5

Retirement Benefit

5.1 Retirement Benefit . A Participant who Retires shall receive, as a Retirement Benefit, the Participant’s Account Balance.

5.2 Payment of Retirement Benefit . In connection with the Participant’s commencement of participation in the Plan, a Participant will elect on an Election Form to receive the Retirement Benefit within sixty (60) days following the six month anniversary of the Participant’s Retirement, in a lump sum or in installments of up to 60 quarters pursuant to the Quarterly Installment Method. The Participant may change the Participant’s election once to an allowable alternative payout period by submitting a new Election Form to the Committee, provided that (a) the election cannot take effect until at least 12 months after the date on which the election is made, (b) the payment with respect to which such election is made must be deferred for a period of 5 years from the date such payment would otherwise have been made under the previous election, (c) the election cannot accelerate the payment of such benefit and (d) the election is accepted by the Committee in its sole discretion. Subject to the prior sentence, the Election Form most recently accepted by the Committee shall govern the payout of the Retirement Benefit. If a Participant does not make any election with respect to the payment of the Retirement Benefit, then such benefit shall be payable in a lump sum. The lump sum payment shall be made, or installment payments shall commence, no earlier than six months after the Participant’s Retirement and no later than 60 days after that six month anniversary.

5.3 Death Prior to Completion of Retirement Benefit . If a Participant dies after Retirement but before the Retirement Benefit is paid in full, the Participant’s unpaid Retirement Benefit payments shall continue and shall be paid to the Participant’s Beneficiary(ies) over the remaining number of quarters and in the same amounts as the Retirement Benefit would have been paid had the participant survived.

ARTICLE 6

Pre-Retirement Survivor Benefit

6.1 Pre-Retirement Survivor Benefit . The Participant’s Beneficiary shall receive a Pre-Retirement Survivor Benefit equal to the Participant’s Account Balance if the Participant dies before the Participant Retires, experiences a Termination of Employment or is determined by the Committee to have a Disability.

6.2 Payment of Pre-Retirement Survivor Benefit . A Participant, in connection with the Participant’s commencement of participation in the Plan, will elect on an Election Form whether the Pre-Retirement Survivor Benefit shall be received by the Participant’s Beneficiary in

 

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a lump sum or in installments of up to 60 quarters pursuant to the Quarterly Installment Method, payable or commencing within sixty (60) days after the last business day of the calendar quarter in which the Committee receives proof of the Participant’s death that it deems satisfactory. The Participant may change this election once to an allowable alternative payout period by submitting a new Election Form to the Committee, provided that (a) the election cannot take effect until at least 12 months after the date on which the election is made, (b) the election cannot accelerate the payment of such benefit and (c) the election is accepted by the Committee in its sole discretion. Subject to the prior sentence, the Election Form most recently accepted by the Committee prior to the Participant’s death shall govern the payout of the Participant’s Pre-Retirement Survivor Benefit. If a Participant does not make any election with respect to the payment of the Pre-Retirement Survivor Benefit, then such benefit shall be paid in a lump sum payment made no later than 60 days after the last business day of the calendar quarter in which the Committee is provided with proof of the Participant’s death that it deems satisfactory.

ARTICLE 7

Termination Benefit

7.1 Termination Benefit . The Participant shall receive a Termination Benefit, which shall be equal to the Participant’s Account Balance, if a Participant experiences a Termination of Employment prior to the Participant’s Retirement, death or Disability.

7.2 Payment of Termination Benefit . In connection with the commencement of participation in the Plan, a Participant will elect on an Election Form to receive the Termination Benefit in a lump sum or in installments of up to 20 quarters, pursuant to the Quarterly Installment Method, commencing or paid no later than sixty (60) days following the date that is six months after the Participant’s Termination of Employment. The Participant may change the Participant’s election once to an allowable alternative payout period by submitting a new Election Form to the Committee, provided that (a) the election cannot take effect for at least 12 months after the date on which the election is made, (b), the payment with respect to which such election is made must be deferred for a period of 5 years from the date such payment would otherwise have been made, (c) the election cannot accelerate the payment of such benefit and (d) the election is accepted by the Committee in its sole discretion. Subject to the prior sentence, the Election Form most recently accepted by the Committee shall govern the payout of the Termination Benefit. If a Participant does not make any election with respect to the payment of the Termination Benefit, then such benefit shall be payable in a lump sum, payable no later than 60 days after the date that is six months after the Participant’s Termination of Employment.

7.3 Death Prior to Completion of Termination Benefit . If a Participant dies after Termination of Employment but before the Termination Benefit is paid in full, the Participant’s unpaid Termination Benefit payments shall continue and shall be paid to the Participant’s Beneficiary over the remaining number of quarters and in the same amounts as that benefit would have been paid to the Participant had the Participant survived.

 

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ARTICLE 8

Disability Benefit

8.1 Disability Benefit . A Participant who is determined by the Committee to have a Disability shall receive a Disability Benefit equal to the Participant’s Account Balance. In connection with commencement of participation in the Plan, the Participant will elect on an Election Form receive the Disability Benefit in a lump sum or in installments of up to 60 quarters, pursuant to the Quarterly Installment Method, payable or commencing within sixty days of the last business day of the calendar quarter in which the Committee determines that the Participant has a Disability. In the event a Participant does not make any election, the Disability Benefit shall be paid in a lump sum payment commencing within sixty days after the last business day of the calendar quarter in which the Committee determines that the Participant has a Disability.

ARTICLE 9

Beneficiary Designation

9.1 Beneficiary . Each Participant shall have the right, at any time, to designate the Participant’s Beneficiary(ies) (both primary as well as contingent) to receive any benefits payable under the Plan to a beneficiary upon the death of a Participant or the death of a predecessor Beneficiary receiving benefits under the Plan. The Beneficiary designated under this Plan may be the same as or different from the Beneficiary designation under any other plan of an Employer in which the Participant participates.

9.2 Beneficiary Designation; Change; Spousal Consent . A Participant shall designate the Participant’s Beneficiary by completing and signing the Beneficiary Designation Form, and returning it to the Committee or its designated agent. A Participant shall have the right to change a Beneficiary by completing, signing and otherwise complying with the terms of the Beneficiary Designation Form and the Committee’s rules and procedures, as in effect from time to time. If a married Participant names someone other than the Participant’s spouse as a primary Beneficiary, a spousal consent, in the form designated by the Committee, must be signed by that Participant’s spouse and returned to the Committee. Upon the acceptance by the Committee of a new Beneficiary Designation Form, all Beneficiary designations previously filed shall be canceled. The Committee shall be entitled to rely on the last Beneficiary Designation Form filed by the Participant and accepted by the Committee prior to the Participant’s death.

9.3 Acknowledgment . No designation or change in designation of a Beneficiary shall be effective until received and acknowledged in writing by the Committee or its designated agent.

9.4 No Beneficiary Designation . If a Participant fails to designate a Beneficiary as provided in Sections 9.1, 9.2 and 9.3 or, if all designated Beneficiaries predecease the Participant or die prior to complete distribution of the Participant’s benefits, then the Participant’s designated Beneficiary shall be deemed to be the Participant’s surviving spouse. If the

 

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Participant has no surviving spouse, the benefits remaining under the Plan to be paid to a Beneficiary shall be payable to the executor or personal representative of the Participant’s estate.

9.5 Doubt as to Beneficiary . If the Committee has any doubt as to the proper Beneficiary to receive payments pursuant to this Plan, the Committee shall have the right, exercisable in its discretion, to cause the Participant’s Employer to withhold such payments until this matter is resolved to the Committee’s satisfaction.

9.6 Discharge of Obligations . The payment of benefits under the Plan to a Beneficiary shall fully and completely discharge all Employers and the Committee from all further obligations under this Plan with respect to the Participant, and that Participant’s Plan Agreement shall terminate upon such full payment of benefits.

ARTICLE 10

Leave of Absence

10.1 Leaves of Absence . A Participant on a leave of absence will be treated as employed by the Employer if the period of leave does not exceed six months (extended to 29 months in the case of Disability leave) or, if longer, the period during which the Participant retains a right to reemployment under applicable law or contract. A participant on an unpaid leave of absence shall not be required to make deferrals until the Participant returns to a paid employment status. Upon such return, the Participant may make a deferral election in accordance with the terms of the Plan, to take effect in the following Plan Year. If a Participant is authorized by the Participant’s Employer for any reason to take a paid leave of absence from the employment of the Employer, the Participant shall continue to be considered employed by the Employer and the Annual Deferral Amount shall continue to be withheld during such paid leave of absence in accordance with Section 3.3.

ARTICLE 11

Termination, Amendment or Modification

11.1 Termination . Although each Employer anticipates that it will continue the Plan for an indefinite period of time, there is no guarantee that any Employer will continue the Plan or will not terminate the Plan at any time in the future. Accordingly, each Employer reserves the right, in its sole discretion, to discontinue its sponsorship of the Plan and/or to terminate the Plan at any time with respect to any or all of its participating Employees by action of either the Committee or its board of directors, consistent with the requirements of Code Section 409A and the regulations thereunder. Termination of the Plan shall not result in a reduction in any Participant’s Account Balance under the Plan.

11.2 Amendment . The Committee may, at any time in its sole discretion, amend or modify the Plan in whole or in part with respect to any Employer; provided, however, that: (a) no amendment or modification shall be effective to decrease or restrict the value of a Participant’s Account Balance in existence at the time the amendment or modification is made, calculated as if the Participant had experienced a Termination of Employment as of the effective date of the

 

14

amendment or modification or, if the amendment or modification occurs after the date upon which the Participant was eligible to Retire, the Participant had Retired as of the effective date of the amendment or modification, and (b) no amendment or modification of this Section 11.2 shall be effective. The amendment or modification of the Plan shall not affect any Participant or Beneficiary who has become entitled to the payment of benefits under the Plan as of the date of the amendment or modification, except to the extent permitted or required under Code Section 409A and the regulations issued thereunder.

11.3 Plan Agreement . Despite the provisions of Section 11.1 and 11.2, if a Participant’s Plan Agreement contains benefits or limitations that are not in this Plan document, the Employer may only amend or terminate such provisions with the consent of the Participant.

11.4 Effect of Payment; Non-Discretionary Cashout . The full payment of the applicable benefit under Article 4, 5, 6, 7 or 8 of the Plan shall completely discharge all obligations to a Participant and the Participant’s designated Beneficiary under this Plan and the Participant’s Plan Agreement shall terminate. Notwithstanding anything in this Plan to the contrary, in the event a Participant’s Account Balance under the Plan, determined as of the last business day of the calendar quarter following the date the Participant first becomes entitled to a benefit pursuant to Articles 4, 5, 6, 7 or 8, is less than $25,000, the Participant’s Account Balance shall be paid in a lump sum within sixty (60) days after the last business day of the applicable calendar quarter in which the Account Balance determination is made by the Employer.

ARTICLE 12

Administration

12.1 Committee Duties . Except as otherwise provided in this Article 12, this Plan shall be administered by a Committee which shall consist of the Board, or such committee as the Board shall appoint from time to time. Members of the Committee may be Participants under this Plan and need not be members of the Board. The Committee shall also have the discretion and authority to (a) make, amend, interpret, and enforce all appropriate rules and regulations for the administration of this Plan and the governance of the Committee and (b) decide or resolve any and all inconsistencies, ambiguities, omissions and questions, including interpretations of this Plan, as may arise in connection with the Plan. Any individual serving on the Committee who is a Participant shall not vote or act on any matter relating solely to himself or herself. When making a determination or calculation, the Committee shall be entitled to rely on information furnished by a Participant or the Company.

12.2 Agents . In the administration of this Plan, the Committee may, from time to time, employ agents and delegate to them such administrative duties as it sees fit (including acting through a duly appointed representative) and may from time to time consult with counsel who may be counsel to any Employer. The Company shall pay all expenses of such agents.

12.3 Binding Effect of Decisions . The decision or action of the Committee with respect to any question arising out of or in connection with the administration, interpretation or

 

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application of the Plan and the rules and regulations promulgated hereunder shall be final and conclusive and binding upon all persons having any interest in the Plan.

12.4 Indemnity of Committee . All Employers shall indemnify, defend and hold harmless each member of the Committee, and any Employee to whom the duties of the Committee may be delegated, against any and all claims, losses, damages, expenses or liabilities, including reasonable attorneys’ fees and court costs, arising from any action or failure to act with respect to this Plan, except in the case of willful misconduct by such member of the Committee or such Employee.

12.5 Employer Information . To enable the Committee to perform its functions, the Company and each Employer shall supply full and timely information to the Committee on all matters relating to the compensation of its Participants, the date and circumstances of the Retirement, Disability, death or Termination of Employment of its Participants, and such other pertinent information as the Committee may reasonably require.

ARTICLE 13

Other Benefits and Agreements

13.1 Coordination with Other Benefits . The benefits provided for a Participant and Participant’s Beneficiary under the Plan are in addition to any other benefits available to such Participant under any other plan or program for employees of the Participant’s Employer. The Plan shall supplement and shall not supersede, modify or amend any other such plan or program except as may otherwise be expressly provided.

ARTICLE 14

Claims Procedures

14.1 Presentation of Claim . Any Participant or Beneficiary of a deceased Participant (such Participant or Beneficiary being referred to below as a “ Claimant ”) may deliver to the Committee a written claim for a determination with respect to the amounts distributable to such Claimant from the Plan. If such a claim relates to the contents of a notice received by the Claimant, the claim must be made within 60 days after such notice was received by the Claimant. All other claims must be made within 180 days of the date on which the event that caused the claim to arise occurred. The claim must state with particularity the determination desired by the Claimant.

14.2 Notification of Decision . The Committee shall consider a Claimant’s claim within a reasonable time, and shall notify the Claimant in writing:

(a) that the Claimant’s requested determination has been made, and that the claim has been allowed in full; or

(b) that the Committee has reached a conclusion contrary, in whole or in part, to the Claimant’s requested determination, and such notice must set forth in a manner calculated to be understood by the Claimant:

 

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  (i) the specific reason(s) for the denial of the claim, or any part of it;

 

  (ii) specific reference(s) to pertinent provisions of the Plan upon which such denial was based;

 

  (iii) a description of any additional material or information necessary for the Claimant to perfect the claim, and an explanation of why such material or information is necessary; and

 

  (iv) an explanation of the claim review procedure set forth in Section 14.3.

14.3 Review of a Denied Claim . Within 60 days after receiving a notice from the Committee that a claim has been denied, in whole or in part, a Claimant (or the Claimant’s duly authorized representative) may file with the Committee a written request for a review of the denial of the claim. Thereafter, but not later than 30 days after the review procedure began, the Claimant (or the Claimant’s duly authorized representative):

(a) may review pertinent documents;

(b) may submit written comments or other documents; and/or

(c) may request a hearing, which the Committee, in its sole discretion, may grant.

14.4 Decision on Review . The Committee shall render its decision on review promptly, and not later than 60 days after the filing of a written request for review of the denial, unless a hearing is held or other special circumstances require additional time, in which case the Committee’s decision must be rendered within 120 days after such date. Such decision must be written in a manner calculated to be understood by the Claimant, and it must contain:

(a) specific reasons for the decision;

(b) specific reference(s) to the pertinent Plan provisions upon which the decision was based; and

(c) such other matters as the Committee deems relevant.

14.5 Legal Action . A Claimant’s compliance with the foregoing provisions of this Article 14 is a mandatory prerequisite to a Claimant’s right to commence any legal action with respect to any claim for benefits under this Plan.

ARTICLE 15

Trust

15.1 Establishment of the Trust . On or as soon as practicable following the effective date of this Plan, the Company shall establish the Trust, with sub-trusts for each Employer. Each

 

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Employer shall at least annually transfer over to the Trust such assets as the Employer determines, in its sole discretion, are necessary to provide, on a present value basis, for its respective future liabilities created with respect to the Annual Deferral Amounts for such Employer’s Participants for all periods prior to the transfer, as well as any debits and credits to the Participants’ Account Balances for all periods prior to the transfer, taking into consideration the value of the assets in the trust at the time of the transfer. Such assets shall be allocated to the respective sub-trust of each participating Employer.

15.2 Interrelationship of the Plan and the Trust . The provisions of the Plan and the Plan Agreement shall govern the rights of a Participant to receive distributions pursuant to the Plan. The provisions of the Trust shall govern the rights of the Employers, Participants and the creditors of the Employers to the assets transferred to the Trust. Each Employer shall at all times remain liable to carry out its obligations under the Plan with respect to its Participants. In this regard, if a Participant has been employed by only one Employer, such Employer shall be responsible for the total amounts credited to such Participant’s Account Balance under this Plan. If a Participant has been employed by more than one Employer, each Employer shall be responsible only for the amounts credited to the Participant’s Account Balance by such Employer.

15.3 Distributions from the Trust . Each Employer’s obligations under the Plan may be satisfied with Trust assets distributed pursuant to the terms of the Trust, and any such distribution shall reduce the Employer’s obligations under this Plan.

15.4 Investment of Trust Assets . The Trustee of the Trust shall be authorized, upon written instructions received from the Committee or investment manager appointed by the Committee, to invest and reinvest the assets of the Trust in accordance with the applicable Trust Agreement.

15.5 No Claim on Trust Assets . A Participant shall have no preferred claim on, or any beneficial interest in, any assets of the Trust. Any assets held by the Trust shall be subject to the claims of general creditors of each Employer that is the grantor of the Trust under federal and state law in the event of the Employer’s “ insolvency ” (i.e., the Employer is unable to pay its debts as they become due or is subject to a pending proceeding as a debtor under the United States Bankruptcy Code), but only with respect to the assets of the Trust held for the benefit of Participants employed or formerly employed by such Employer.

ARTICLE 16

Miscellaneous

16.1 Status of Plan . The Plan is intended to be a plan that is not qualified within the meaning of Code Section 401(a) and that “ is unfunded and is maintained by an employer primarily for the purpose of providing deferred compensation for a select group of management or highly compensated employees ” within the meaning of ERISA Sections 201(2), 301(a)(3) and 401(a)(1). In addition, the Plan is intended to comply with Code Sections 409A(a)(1) to (4) and (b)(1) to (2). The Plan shall be administered and interpreted in a manner consistent with those foregoing intents. Should any provision of this Plan not comply the

 

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provisions of Code Section 409A listed above, that provision shall have no effect on the remaining parts of this Plan and this Plan shall be construed and enforced as if such provision had never been inserted herein.

16.2 Unsecured General Creditor . Participants and their Beneficiaries, heirs, successors and assigns shall have no legal or equitable rights, interests or claims in any property or assets of an Employer. For purposes of the payment of benefits under this Plan, any and all of an Employer’s assets shall be, and remain, the general, unpledged unrestricted assets of the Employer. An Employer’s obligation under the Plan shall be merely that of an unfunded and unsecured promise to pay money in the future.

16.3 Employer’s Liability . An Employer’s liability for the payment of benefits shall be defined only by the Plan and the Plan Agreement, as entered into between the Employer and a Participant. An Employer shall have no obligation to a Participant under the Plan except as expressly provided in the Plan and the Participant’s Plan Agreement.

16.4 Nonassignability . Neither a Participant nor any other person shall have any right to commute, sell, assign, transfer, pledge, anticipate, mortgage or otherwise encumber, transfer, hypothecate, alienate or convey in advance of actual receipt, the amounts, if any, payable hereunder, or any part thereof, which are, and all rights to which are expressly declared to be, unassignable and non-transferable. No part of the amounts payable shall, prior to actual payment, be subject to seizure, attachment, garnishment or sequestration for the payment of any debts, judgments, alimony or separate maintenance owed by a Participant or any other person, be transferable by operation of law in the event of a Participant’s or any other person’s bankruptcy or insolvency or be transferable to a spouse as a result of a property settlement or otherwise.

16.5 Not a Contract of Employment . The terms and conditions of this Plan shall not be deemed to constitute a contract of employment between any Employer and the Participant. Such employment is hereby acknowledged to be an “ at will ” employment relationship that can be terminated at any time for any reason, or no reason, with or without cause, and with or without notice, unless otherwise expressly provided in a written employment agreement. Nothing in this Plan shall be deemed to give a Participant the right to be retained in the service of any Employer or to interfere with the right of any Employer to discipline or discharge the Participant at any time.

16.6 Furnishing Information . A Participant or Participant’s Beneficiary will cooperate with the Committee by furnishing any and all information requested by the Committee and take such other actions as may be requested in order to facilitate the administration of the Plan and the payments of benefits hereunder, including but not limited to taking such physical examinations as the Committee may deem necessary.

16.7 Terms . Whenever any words are used herein in the masculine, they shall be construed as though they were in the feminine in all cases where they would so apply; and whenever any words are used herein in the singular or in the plural, they shall be construed as though they were used in the plural or the singular, as the case may be, in all cases where they would so apply.

 

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16.8 Captions . The captions of the articles, sections and paragraphs of this Plan are for convenience only and shall not control or affect the meaning or construction of any of its provisions.

16.9 Governing Law . Subject to ERISA, the provisions of this Plan shall be construed and interpreted according to the internal laws of the State of Nevada, without regard to its conflicts of laws principles.

16.10 Notice . Any notice or filing required or permitted to be given to the Committee under this Plan shall be sufficient if in writing and hand-delivered, or sent by registered or certified mail, to the address below:

MGM Growth Properties Operating Partnership LP

c/o MGM Resorts

3600 Las Vegas Blvd So.

Las Vegas, NV 89109

Attention: Designated legal counsel for purposes of administration of the MGM Growth Properties Operating Partnership LP Nonqualified Deferred Compensation Plan

Such notice shall be deemed given as of the date of delivery or, if delivery is made by mail as of the date shown on the postmark on the receipt for registration or certification.

Any notice or filing required or permitted to be given to a Participant under this Plan shall be sufficient if in writing and hand-delivered, or sent by mail, to the last known address of the Participant.

16.11 Successors . The provisions of this Plan shall bind and inure to the benefit of the Participant’s Employer and its successors and assigns and the Participant and the Participant’s designated Beneficiaries. No other person shall be a third-party beneficiary or acquire any rights under this Plan.

16.12 Spouse’s Interest . The interest in the benefits hereunder of a spouse of a Participant who has predeceased the Participant shall automatically pass to the Participant and shall not be transferable by such spouse in any manner, including but not limited to such spouse’s will, nor shall such interest pass under the laws of intestate succession.

16.13 Validity . In case any provision of this Plan shall be illegal or invalid for any reason, said illegality or invalidity shall not affect the remaining parts hereof, but this Plan shall be construed and enforced as if such illegal or invalid provision had never been inserted herein.

16.14 Incompetent . If the Committee determines in its discretion that a benefit under this Plan is to be paid to a minor, a person declared incompetent or a person incapable of handling the disposition of that person’s property, the Committee may direct payment of such benefit to the guardian, legal representative or person having the care and custody of such minor, incompetent or incapable person. The Committee may require proof of minority, incompetence, incapacity or guardianship, as it may deem appropriate prior to distribution of the benefit. Any payment of a benefit shall be a payment for the account of the Participant and the Participant’s

 

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Beneficiary, as the case may be, and shall be a complete discharge of any liability under the Plan for such payment amount.

16.15 Court Order . The Committee is authorized to make any payments directed by court order in any action in which the Plan or the Committee has been named as a party. In addition, if a court determines that a spouse or former spouse of a Participant has an interest in the Participant’s benefits under the Plan in connection with a property settlement or otherwise, the Committee, in its sole discretion, shall have the right, notwithstanding any election made by a Participant, to immediately distribute the spouse’s or former spouse’s interest in the Participant’s benefits under the Plan to that spouse or former spouse. Notwithstanding the foregoing, the Committee shall interpret this provision in a manner that is consistent with Code Section 409A and other applicable tax law, including but not limited to guidance issued after the effective date of this Plan.

16.16 Distribution in the Event of Taxation.

(a) In General . If, for any reason, all or any portion of a Participant’s benefits under this Plan becomes taxable to the Participant prior to receipt, a Participant may petition the Committee before a Change in Control, or the Trustee of the Trust after a Change in Control, for a distribution of that portion of the Participant’s benefit that has become taxable. Upon the grant of such a petition, which grant shall not be unreasonably withheld (and, after a Change in Control, shall be granted), a Participant’s Employer shall distribute to the Participant immediately available funds in an amount equal to the taxable portion of the Participant’s benefit (which amount shall not exceed a Participant’s unpaid Account Balance under the Plan). If the petition is granted, the tax liability distribution shall be made within 90 days of the date when the Participant’s petition is granted. Such a distribution shall affect and reduce the benefits to be paid under this Plan. Notwithstanding the foregoing, the Committee shall interpret this provision in a manner that is consistent with Code Section 409A and other applicable tax law, including but not limited to guidance issued after the effective date of this Plan.

(b) Trust . If the Trust terminates in accordance with its terms and benefits are distributed from the Trust to a Participant in accordance therewith, the Participant’s benefits under this Plan shall be reduced to the extent of such distributions.

16.17 Legal Fees To Enforce Rights After Change in Control . The Company and each Employer is aware that upon the occurrence of a Change in Control, the Board or the board of directors of a Participant’s Employer (which might then be composed of new members) or a shareholder of the Company or the Participant’s Employer, or of any successor corporation, might cause or attempt to cause, the Company, the Participant’s Employer or such successor to refuse to comply with its obligations under the Plan and might cause or attempt to cause the Company or the Participant’s Employer to institute, or may institute, litigation seeking to deny Participants the benefits intended under the Plan. In these circumstances, the purpose of the Plan could be frustrated. Accordingly, if, following a Change in Control, it should appear to any Participant that the Company, the Participant’s Employer or any successor corporation has failed to comply with any of its obligations under the Plan or any agreement thereunder or, if the Company, such Employer or any other person takes any action to declare the Plan void or unenforceable or institutes any litigation or other legal action designed to deny, diminish or to

 

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recover from any Participant the benefits intended to be provided (collectively, the “ Dispute ”), then the Company and the Participant’s Employer shall pay, if the Participant prevails in the Dispute, the Participant’s reasonable legal fees and court costs actually incurred by the Participant in the initiation or defense of the Dispute, whether by or against the Company or the Participant’s Employer or any director, officer, shareholder or other person affiliated with the Company, the Participant’s Employer or any successor thereto.

 

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Exhibit 10.10

MGM Growth Properties LLC

2016 DEFERRED COMPENSATION PLAN

FOR NON-EMPLOYEE DIRECTORS

MGM Growth Properties LLC, a Delaware limited liability company (the “ Company ”), hereby establishes this nonqualified deferred compensation plan for (i) members of the Board of Directors of the Company and (ii) members of any Affiliate Board, in each case, who are not employees or officers of the Company and its Affiliates (“ Non-Employee Directors ”), which plan is known as the MGM Growth Properties LLC 2016 Deferred Compensation Plan for Non-Employee Directors (the “ Plan ”). The purpose of the Plan is to enhance the Company’s and its Affiliates’ ability to attract and retain Non-Employee Directors whose training, experience and ability will promote the interests of the Company and to directly align the interests of such Non-Employee Directors with the interests of the Company’s shareholders. The Plan is designed to permit Non-Employee Directors to defer the receipt of all or a portion of the compensation otherwise payable to them for services to the Company.

The Plan is effective as of April 18, 2016 (the “ Effective Date ”). The Plan is intended to be, and shall be administered as, an unfunded plan maintained for the purpose of providing deferred compensation for the Non-Employee Directors and, as such, is not an “ employee benefit plan ” within the meaning of Title I of ERISA (as defined below).

ARTICLE I

DEFINITIONS

1.1 “ Administrator ” means the administrator that has been appointed by the Board pursuant to Article V of the Plan.

1.2 “ Affiliate ” means any corporation or any other entity (including, but not limited to, a partnership or a limited liability company), that directly or indirectly through one or more intermediaries controls, is controlled by or is under common control with the corporation or other entity in question.

1.3 “ Affiliate Board ” means the board of directors, board of managers or similar administrative body of any Affiliate of the Company.

1.4 “ Board ” means the Board of Directors of the Company or such committee thereof (for avoidance of doubt, comprised solely of one or more members of the Board of Directors of the Company) to which the Board of Directors of the Company delegates one or more of its obligations, responsibilities and authorities under the Plan from time to time.

1.5 “ Cash Fees ” shall have the meaning set forth in Section 3.2(b) of the Plan.

1.6 “ Code ” means the Internal Revenue Code of 1986, as amended.

1.7 “ Company ” means MGM Growth Properties LLC.

1.8 “ Deferred Compensation Accounts ” shall have the meaning set forth in Article III of the Plan.

1.9 “ Deferred Share Unit ” shall have the meaning set forth in Section 3.3 of the Plan.

1.10 “ Dividend Equivalent Amount ” shall have the meaning set forth in Section 3.3(f)(ii) of the Plan.

1.11 “ ERISA ” means the Employee Retirement Income Security Act of 1974, as amended.

1.12 “ Fees ” includes all fee income payable to Non-Employee Directors for their service on the Board, including, but not limited to (a) annual retainer fees (whether paid in equity (including RSUs) or cash) and (b) compensation that may be payable to such Non-Employee Directors for serving on any of the committees of the Board, as chairperson of any of the committees of the Board or as Lead Director. The term “ Fees ” does not include travel payments that may be made to such Non-Employee Directors as a result of attending meetings of the Board or payments that constitute reimbursement for expenses incurred by a Non-Employee Director in connection with his or her services to the Board. Notwithstanding anything herein to the contrary, fee income payable to Non-Employee Directors for their service to Affiliate Boards shall not be considered “Fees” for purposes of this Plan unless approved by the Board.

1.13 “ Measurement Fund ” shall have the meaning set forth in Section 3.3 of the Plan.

1.14 “ Participant ” means a Non-Employee Director (and, if applicable, his or her beneficiaries) who has elected to participate in the Plan.

1.15 “ Plan Year ” means (a) initially, the period commencing on the Effective Date and terminating on December 31, 2016, and (b) thereafter, each full or partial calendar year during which this Plan is in effect.

1.16 “ Restricted Share Unit ” or “ RSU ” means an award granted to a Non-Employee Director who is a member of either the Board or an Affiliate Board pursuant to Article 8 of the Company’s 2016 Omnibus Incentive Plan, as amended from time to time, in consideration of the Participant’s past or expected future provision of services to the Company.

1.17 “ Service End Date ” means the first day of the month following the month in which the Participant terminates his or her services as a Non-Employee Director.

1.18 “ Share ” means a share of Class A common shares representing limited liability company interests of the Company.

1.19 “ Subsidiary ” means any corporation, limited liability company or partnership in which the Company owns, directly or indirectly, more than 50% of the total combined voting power of all classes of stock of such corporation or of the capital interest or profits interest of such partnership.

 

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ARTICLE II

PARTICIPATION REQUIREMENTS

2.1 Eligibility . All Non-Employee Directors are eligible to participate in the Plan. A Non-Employee Director will be deemed a Participant in the Plan if he or she defers all or a portion of the RSUs and/or other Fees to be earned during a Plan Year as provided herein.

2.2 Elections .

(a) General Rules .

(i) Annual Election . The election to defer all or a portion of the Participant’s RSUs and/or other Fees for the next Plan Year, as well as the election of the form and timing of any distributions on the Participant’s behalf with respect to the amount deferred during such Plan Year, shall be made by submitting an election form, whether written or electronic (as determined by the Board from time to time and in its sole discretion), to the Board or its designee not later than the last day immediately preceding such Plan Year, and shall become effective on the date such election form is thus delivered.

(ii) First Plan Year . In the case of a Non-Employee Director who first becomes eligible to participate in the Plan on the Effective Date, any election to defer all or a portion of the Non-Employee Director’s RSUs and/or other Fees for the Plan Year commencing on the Effective Date, as well as any election as to the form and timing of any distributions on the Non-Employee Director’s behalf with respect to the amount deferred during the Plan Year commencing on the Effective Date, shall be made by submitting an election form, whether written or electronic (as determined by the Board from time to time and in its sole discretion), to the Board or its designee not later than the Effective Date, and shall become effective on the date such election form is thus delivered; provided, however, that with respect to any such initial election, no RSUs and/or other Fees attributable to the period before which the election is made and becomes effective are eligible for deferral under this Plan.

(iii) Newly Eligible Non-Employee Director . In the case of a Non-Employee Director who first becomes eligible during a Plan Year other than as set forth in Section 2(a)(ii) hereof, any election to defer all or a portion of the Non-Employee Director’s RSUs and/or other Fees for the then-current Plan Year, as well as any election as to the form and timing of any distributions on the Non-Employee Director’s behalf with respect to the amount deferred during such Plan Year, shall be made by submitting an election form, whether written or electronic (as determined by the Board from time to time and in its sole discretion), to the Board or its designee not later than thirty (30) days after such Non-Employee Director first becomes eligible to participate in this Plan, and shall become effective on the date such election is thus delivered; provided, however, that with respect to any such initial election, no RSUs and/or other Fees attributable to the

 

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period before which the election is made and becomes effective are eligible for deferral under this Plan.

(iv) Election Irrevocable . Any election made pursuant to Section 2(a)(i), (ii) or (iii) shall be irrevocable from and following the date it becomes effective except as set forth below.

(b) Amendment of Election Form . Each Participant may amend his or her election forms with respect to his or her Deferred Compensation Account balance (i) to change the previously-elected form of distribution in respect of all distributions under the Plan to another distribution form permitted under Section 4.1, or (ii) to change the starting date for commencement of all payments under the Plan to another definitely determinable date, provided, however that such election shall be made in the manner specified by the Company. Notwithstanding the foregoing, to be effective, any election made pursuant to this Section 2.2(b) must satisfy the following conditions: (x) it must be made at least twelve months prior to the date as of which distribution to the Participant in respect of his or her Deferred Compensation Account would otherwise have been made to the Participant and (y) it must defer the commencement date of distribution to the Participant in respect of his or her Deferred Compensation Account for at least five (5) years from the date that would have applied absent such election.

ARTICLE III

DEFERRED COMPENSATION ACCOUNTS

3.1 Establishment of Deferred Compensation Accounts . An account shall be established for each Participant which shall be designated as his or her Deferred Compensation Account. Each Participant’s Deferred Compensation Account may be sub-allocated as a recordkeeping matter and accounting convenience, but the Company shall not be required to segregate any amounts credited to the Deferred Compensation Accounts in any manner or in any form, except in its sole discretion.

3.2 Crediting Deferred Compensation Accounts .

(a) Crediting of RSUs to Deferred Compensation Accounts . Upon the execution of a valid election form pursuant to Section 2.2(a) with respect to the deferral of RSUs, such deferred RSUs shall be credited to the Participant’s Deferred Compensation Accounts as of the date the award would have otherwise vested.

(b) Crediting of Other Fees to Deferred Compensation Accounts . Upon the execution of a valid election form pursuant to Section 2.2(a) with respect to the deferral of Fees other than RSUs attributable to services performed by the Participant in the next Plan Year (such Fees referred to herein as “ Cash Fees ”), such Fees shall be credited to the Participant’s Deferred Compensation Accounts on the last day of the fiscal quarter to which such Fees relate.

3.3 Crediting/Debiting of Account Balances . In accordance with, and subject to, the rules and procedures that are established from time to time by the Board, in its sole discretion,

 

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amounts shall be credited or debited to a Participant’s Deferred Compensation Account in accordance with the following rules:

(a) Election of Measurement Funds . Solely with respect to (i) Cash Fees deferred under the Plan and (ii) Dividend Equivalent Amounts, a Participant may elect, on an election form provided by the Board, one or more Measurement Fund(s) (as described in Section 3.3(c)) to be used to determine the additional amounts to be credited or debited to the Participant’s Deferred Compensation Account. A Participant may elect to add or delete one or more available Measurement Fund(s) to be used to determine the additional amounts to be credited or debited to the Participant’s Deferred Compensation Account, or, other than with respect to changes between the Company share fund and any other Measurement Fund, to change the portion of the Cash Fees and/or Dividend Equivalent Amounts deferred under the Participant’s Deferred Compensation Account allocated to each previously or newly elected Measurement Fund. A Participant may elect to make such a change by submitting an election form, whether written or electronic (as determined by the Board from time to time and in its sole discretion), to the Board or its designee. Any election so made and accepted by the Board shall apply no later than the third business day following the Board’s acceptance of the election. Any such election shall continue to apply to Cash Fees and/or Dividend Equivalent Amounts deferred under the Participant’s Deferred Compensation Account, unless subsequently changed in accordance with this Section 3.3(a). Once an election has been made to allocate deferred Cash Fees and/or Dividend Equivalent Amounts to the Company share fund, the Participant shall not be permitted to change such election to allocate such Cash Fees and/or Dividend Equivalent Amounts to a different Measurement Fund.

(b) Proportionate Allocation . In making any election described in Section 3.3(a) with respect to Cash Fees, the Participant shall specify on the election form, in increments of one percentage point (1%), the percentage of the Cash Fees deferred under the Participant’s Deferred Compensation Account to be allocated to a Measurement Fund (as if the Participant were making an investment in that Measurement Fund with that portion of the Participant’s Deferred Compensation Account). In making any election described in Section 3.3(a) with respect to Dividend Equivalent Amounts, the Participant shall specify on the election form that one hundred percent (100%) of all Dividend Equivalent Amounts are to be allocated to a Measurement Fund (as if the Participant were making an investment in that Measurement Fund with the entirety of all Dividend Equivalent Amounts within the Participant’s Deferred Compensation Account).

(c) Measurement Funds . A Participant may elect one or more measurement funds (the “ Measurement Funds ”) from among those selected by the Board for the purpose of crediting or debiting additional amounts to the Participant’s Deferred Compensation Account. Measurement Funds selected by the Board may include one or more mutual funds, a fixed interest crediting rate formula, a Company share fund and/or other investment alternatives. As necessary, the Board may, in its sole discretion, discontinue, substitute or add Measurement Funds. Each such action will take effect as of the first day of the calendar quarter that follows by thirty (30) days or more the day on which the Board gives Participants advance written notice of such change, unless such advance notice cannot be given due to reasons beyond the control of the Board, in which case notice of the change shall be given as soon as administratively practical. In selecting the Measurement Funds that are available from time to time, neither the Board nor the Company shall be liable to any Participant for such selection or adding, deleting or continuing any available Measurement Fund. The Participant shall bear full responsibility for all results associated with the Participant’s selection of Measurement Funds under this Section 3.3, and the Company shall have no responsibility or liability with respect to the Participant’s selection of such Measurement Funds.

 

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(d) Crediting or Debiting Method . The performance of each elected Measurement Fund (either positive or negative) will be reasonably determined by the Board. The portion of a Participant’s Deferred Compensation Account that relates to Cash Fees and/or Dividend Equivalent Amounts deferred under the Plan shall be credited or debited on a daily basis based on the performance of each Measurement Fund selected by the Participant.

(e) No Actual Investment . Notwithstanding any other provision of this Plan that may be interpreted to the contrary, the Measurement Funds are to be used for measurement purposes only, and a Participant’s election of any such Measurement Fund, the allocation to the Participant’s Deferred Compensation Account thereof, the calculation of additional amounts and the crediting or debiting of such amounts to a Participant’s Deferred Compensation Account shall not be considered or construed in any manner as an actual investment of the Participant’s Deferred Compensation Account in any such Measurement Fund. In the event that the Company, in its sole discretion, decides to invest funds in any or all of the Measurement Funds, no Participant shall have any rights in or to such investments themselves. Without limiting the foregoing, a Participant’s Deferred Compensation Account shall at all times be a bookkeeping entry only and shall not represent any investment made on the Participant’s behalf by the Company; and the Participant shall at all times remain an unsecured creditor of the Company.

(f) Deferred Share Units . (i) With respect to the portion of a Participant’s Deferred Compensation Account attributable to deferred RSUs and the portion of a Participant’s Deferred Compensation Account attributable to Cash Fees and/or Dividend Equivalent Amounts for which the Measurement Fund selected is the Company share fund, such amounts will be deemed invested in deferred share units that are intended to mirror the performance of Shares, with each deferred share unit the equivalent of one Share (“ Deferred Share Units ”). Any such Deferred Share Units attributable to Cash Fees and/or Dividend Equivalent Amounts shall be treated as Restricted Share Units (which, for avoidance of doubt, have been granted pursuant to Article 8 of the Company’s 2016 Omnibus Incentive Plan, as amended from time to time, subject to a period of restriction). Such amounts will be credited under the Plan as if the Participant had actually purchased Shares on the date of such deferral. (ii) If dividends on the Shares are declared while a Participant holds Deferred Share Units in his or her Deferred Compensation Account, additional amounts (“Dividend Equivalent Amounts”) will be credited to such Participant’s Deferred Compensation Account as follows: (A) If a Participant has elected to have Dividend Equivalent Amounts credited to the Company share fund, then additional Deferred Share Units will be credited to such Participant’s Deferred Compensation Account in the following manner. First, a notional value equal to the cash value of dividends that would be paid upon the same number of whole Shares as the Participant has Deferred Share Units in his or her Deferred Compensation Account on the dividend crediting date (e.g., the date such dividend is payable) will be calculated. Second, as of the same date, such notional value will be deemed to be allocated to the Participant’s Deferred Compensation Account and credited to a corresponding number of Deferred Share Units to such Deferred Compensation Account (in whole or fractional units), as soon as administratively practicable. (B) If a Participant has elected to have Dividend Equivalent Amounts credited to a Measurement Fund other than the Company share fund, then additional amounts will be credited to such Participant’s Deferred Compensation Account in the following manner. First, a notional value equal to the cash value of dividends that would be paid upon the same number of whole Shares as the Participant has Deferred Share Units in his or her Deferred Compensation Account on the dividend crediting date (e.g., the date such dividend is payable) will be calculated. Second, as of the same date, such notional value will be deemed to be allocated to the Participant’s Deferred Compensation Account and credited to the applicable Measurement Fund (other than the Company share fund) elected by the Participant, as soon as administratively practicable. (iii) For the avoidance of doubt, deferred RSUs must always be hypothetically invested in Deferred Share Units; however, although Cash Fees and Dividend Equivalent Amounts deferred under the Plan may be hypothetically invested in any of the Measurement Funds, including Deferred Share Units, once invested in Deferred Share Units, deferred Cash Fees and Dividend Equivalent Amounts may not be transferred to any other Measurement Funds.

(g) Valuation of Deferred Compensation Account . With respect to any distribution for a Participant’s Deferred Compensation Account as provided for in Article IV of the Plan, the aggregate value of any such distribution shall be valued as of the date of distribution.

 

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ARTICLE IV

DISTRIBUTIONS FROM THE PLAN

4.1 Timing and Form of Distribution . The Company shall pay to the Participant (or, in the event of the Participant’s death, to the Participant’s designated beneficiary) a sum equal to the amount then standing to his or her credit in his or her Deferred Compensation Account (plus earnings or losses as provided for under Section 3.3 herein), in the following manner:

(a) Lump Sum or Installment Payments . Payments shall be made in a lump sum, or in installments (to the extent made available by the Administrator), as elected by the Participant in his or her deferral election form, to begin within 90 days following the Participant’s Service End Date. In the event an installment option is chosen, such installments shall be as nearly equal as practicable and shall continue even if the Participant again serves on the Board. The form of distribution for that portion of a Participant’s Deferred Compensation Account deemed invested in Deferred Share Units shall be Shares; provided, that any fractional Shares shall be paid in cash. The form of distribution for that portion of a Participant’s Deferred Compensation Account deemed invested in Measurement Fund(s) other than Deferred Share Units shall be cash.

(b) Small Account Balances – Lump Sum Payout . Notwithstanding the foregoing, in the event the amount scheduled for distribution on or following the Participant’s Service End Date in installments (rather than lump sum) is ten thousand dollars ($10,000) or less at the time distributions would commence by reason of the application of this Section 4.1(b), payment of such portion of Participant’s Deferred Compensation Account balance shall be made in a single lump sum within 90 days of the date such distribution would otherwise have commenced, notwithstanding the form of benefit payment elected by the Participant.

(c) Normal Form of Benefits . In the event no election is made pursuant to this Article IV, payments shall be made in lump sum within 90 days following the Participant’s Service End Date.

(d) Death of Participant . Notwithstanding the above, if the Participant dies (either before payments commence from the Plan or while such payments are being made), the balance of the Participant’s Deferred Compensation Account shall immediately become due and payable in one lump sum to the Participant’s beneficiary or, if no beneficiary is designated or then living, to the Participant’s estate within 90 days of the date of the Participant’s death.

ARTICLE V

ADMINISTRATION OF THE PLAN

5.1 Administration of the Plan . The Board shall appoint an Administrator to administer the Plan, which Administrator shall be comprised of one or more executive officers of the Company. The Administrator shall maintain such procedures and records as will enable the Administrator to determine the Participants and their beneficiaries who are entitled to receive benefits under the Plan and the amounts thereof.

 

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5.2 General Powers of Administration . The Board shall have the exclusive right, power, and authority to interpret, in its sole discretion, any and all of the provisions of the Plan; to resolve any ambiguity or inconsistency or provide for any omission under the Plan; and to consider and decide conclusively any questions (whether of fact or otherwise) arising in connection with the administration of the Plan or any claim for benefits arising under the Plan. Any decision or action of the Board or the Administrator shall be conclusive and binding on the Company and the Participants. The Plan is designed to comply with the applicable requirements of Section 409A of the Code and the regulations promulgated thereunder, and shall be administered and construed to the maximum extent possible consistent with the requirements of such Section and such regulations.

ARTICLE VI

AMENDMENT AND TERMINATION

6.1 Amendment of the Plan . The Administrator shall have the authority to adopt minor amendments to the Plan without prior approval by the Board that:

(a) are necessary or advisable for purposes of complying with applicable laws and regulations;

(b) relate to administrative practices under the Plan (including, but not limited to, the establishment of any procedures or processes or accounts related to the distribution of Shares or other amounts under the Plan); or

(c) have an insubstantial financial effect on the Plan.

The Board shall have the authority to adopt any other amendments to the Plan not encompassed under the terms of the preceding sentence. Any such amendments must be made by written instrument, and notice of such amendments shall be provided as soon as practicable to Participants after their adoption.

6.2 Limitations on Amendment or Termination of the Plan . The Company reserves the right to amend or terminate the Plan in any respect and at any time, without the consent of Participants or beneficiaries; provided, however, that the following conditions with respect to such amendment or termination must be satisfied in order for such amendment or termination to be binding and in effect:

(a) Such amendment or termination must be made pursuant to a written resolution of the Board which is approved thereafter by the Board; and

(b) Such amendment or termination resolution may not adversely affect the rights of any Participant or beneficiary to receive benefits earned and accrued under the Plan prior to such amendment or termination; provided, however, that the following shall not be deemed to violate this provision:

(i) any acceleration of payments of amounts accrued under the Plan by action of the Board or by operation of the Plan’s terms; or

 

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(ii) any decision by the Board to limit participation (or other features of the Plan) prospectively under the Plan.

ARTICLE VII

GENERAL PROVISIONS

7.1 Shares Issued Under the Plan . Any Shares that are distributed under the Plan in accordance with Article IV shall be funded from the share pool available under the Company’s 2016 Omnibus Incentive Plan, as amended from time to time, or any other equity incentive plan of the Company. No shares shall be separately issuable under the Plan.

7.2 Participant’s Rights Unsecured and Unfunded . This Plan is an unfunded plan maintained primarily to provide deferred compensation benefits for Non-Employee Directors, and therefore is exempt from the provisions of Parts 2, 3 and 4 of Title I of ERISA. Accordingly, no assets of the Company shall be segregated or earmarked to represent the liability for accrued benefits under the Plan. Amounts referenced in Participant account statements are only recordkeeping devices reflecting such liability for accrued benefits, and do not reflect any actual amounts credited. The right of a Participant (or his or her Beneficiary) to receive a payment hereunder shall be an unsecured claim against the general assets of the Company or any successor to the Company. All payments under the Plan shall be made from the general funds of the Company or any successor. The Company is not required to set aside money or any other property to fund its obligations under the Plan, and all amounts that may be set aside by the Company prior to the distribution of account balances under the terms of the Plan remain the property of the Company (or, if applicable, any successor). Notwithstanding the foregoing, nothing in this Section 7.2 shall preclude the Company, in its sole discretion, from establishing a “ rabbi trust ” or other vehicle in connection with the operation of this Plan, provided that no such action shall cause the Plan to fail to be an unfunded plan designed to provide deferred compensation benefits for Non-Employee Directors within the meaning of Title I of ERISA.

7.3 No Guarantee of Benefits . Nothing contained in the Plan shall constitute a guaranty by the Company or any other person or entity that the assets of the Company will be sufficient to pay any benefit hereunder.

7.4 No Creation of Employee Rights; Plan is Not A Contract of Employment . Participation in the Plan shall not be construed to give or deem any Participant to be an employee of the Company. This Plan shall not constitute a contract of employment between the Company and any Participant.

7.5 Non-Alienation Provision . No interest of any person or entity in, or right to receive a benefit or distribution under, the Plan shall be subject in any manner to sale, transfer, anticipation, assignment, pledge, attachment, garnishment, or other alienation or encumbrance of any kind; nor may such interest or right to receive a distribution be taken, either voluntarily or involuntarily for the satisfaction of the debts of, or other obligations or claims against, such person or entity, including claims for alimony, support, separate maintenance and claims in bankruptcy proceedings.

 

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7.6 Applicable Law; Severability . The Plan shall be construed and administered under the laws of the State of Delaware, except to the extent that such laws are preempted by ERISA, if applicable. In the event any provision of this Plan shall be determined to be illegal or invalid for any reason, the remaining portion(s) shall continue in full force and effect as if such illegal or invalid provision had never been included herein.

7.7 No Impact on Other Benefits . Amounts accrued under the Plan shall not be included in a Participant’s compensation for purposes of calculating benefits under any other plan, program or arrangement sponsored by the Company.

7.8 Incapacity of Recipient . If a Participant or other beneficiary entitled to a distribution under the Plan is living under guardianship or conservatorship, distributions payable under the terms of the Plan to such Participant or beneficiary shall be paid to his or her appointed guardian or conservator and such payment shall be a complete discharge of any liability of the Company under the Plan.

7.9 Usage of Terms and Headings . Words in the masculine gender shall include the feminine and the singular shall include the plural, and vice versa, unless qualified by the context. Any headings are included for ease of reference only, and are not to be construed to alter the terms of the Plan.

*        *        *

 

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Exhibit 10.11

MGM GROWTH PROPERTIES LLC

FORM OF PERFORMANCE SHARE UNITS AGREEMENT

 

 

Target No. of Performance Share Units: [●]

This Agreement (including its Exhibits, the “ Agreement ”) is made by and between MGM Growth Properties LLC, a Delaware limited liability company (the “ Company ”), and [●] (the “ Participant ”) with an effective date of [●] (the “ Effective Date ”).

RECITALS

A. The Board of Directors of the Company (the “ Board ”) has adopted the MGM Growth Properties LLC 2016 Omnibus Incentive Plan (the “ Plan ”), which provides for the granting of Performance Share Units (as that term is defined in Section 1 below) to selected service providers. Capitalized terms used and not defined in this Agreement shall have the same meanings as in the Plan.

B. The Board believes that the grant of Performance Share Units will stimulate the interest of selected employees in, and strengthen their desire to remain with, the Company or any of its Affiliates (as hereinafter defined).

C. In consideration of the Participant’s services to the Operating Partnership, the Board has authorized the grant of Performance Share Units to the Participant pursuant to the terms of the Plan and this Agreement.

D. The Board and the Participant intend that the Plan and this Agreement constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any employment agreement between the Participant and the Company or any of its Affiliates whether previously entered into, currently effective or entered into in the future) which relate to the subject matter hereof.

Accordingly, in consideration of the mutual covenants contained herein, the parties agree as follows:

1. Definitions .

1.1 “ Beginning Average Share Price ” means the average closing price of either (a) the Shares or (b) the stock of a member of the Comparison Group, as applicable, in any such case over the 60 calendar day period ending on the Effective Date; provided , however , that in the case of an Award made in connection with the IPO, (i) the Beginning Average Share Price for purposes of the Shares shall be the public offering price per Share set forth on the cover page of the final prospectus, dated [●], filed with the Securities and Exchange Commission under Rule 424(b) of the Securities Act of 1933, as amended, in connection with the IPO, and (ii) the

Beginning Average Share Price for purposes of the stock of a member of the Comparison Group shall be the closing price of such stock on [●].

1.2 “ Bankrupt Comparator Entity ” means a company that is a member of the Comparison Group as of the Effective Date and that becomes subject to any of the following conditions during the Performance Period: (a) bankruptcy, (b) liquidation, (c) dissolution or (d) other than as part of a merger, acquisition or similar corporate transaction, cessation of business operations. Determinations with respect to a Bankrupt Comparator Entity shall be made by the Board in its sole discretion.

1.3 “ Change of Control ” means, with respect to (x) the Company or (y) provided that it is an Affiliate of the Company at the relevant time, MGM (each of (x) and (y), a “ Referenced Entity ”), the first to occur of:

(A) the date that a reorganization, merger, consolidation, recapitalization, or similar transaction (other than a spinoff, exchange offer or similar transaction to or with the applicable Referenced Entity’s public shareholders) is consummated, unless: (i) at least 50% of the outstanding voting securities of the surviving or resulting entity (including, without limitation, an entity which as a result of such transaction owns the Company either directly or through one or more subsidiaries) (“Resulting Entity”) are beneficially owned, directly or indirectly, by the persons who were the beneficial owners of the outstanding voting securities of the Corporation immediately prior to such transaction in substantially the same proportions as their beneficial ownership, immediately prior to such transaction, of the outstanding voting securities of the Corporation and (ii) immediately following such transaction no person or persons acting as a group beneficially owns capital stock of the Resulting Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Resulting Entity;

(B) the date that a majority of members of the Referenced Entity’s Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Referenced Entity’s Board before the date of the appointment or election; provided that no individual shall be considered to be so endorsed if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Referenced Entity’s Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest;

(C) the date that any one person, or persons acting as a group, acquires (or has or have acquired as of the date of the most recent acquisition by such person or persons) beneficial ownership of stock of the Referenced Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Referenced Entity; or

(D) the date that any one person acquires, or persons acting as a group acquire (or has or have acquired as of the date of the most recent acquisition by such person or persons), assets from the Referenced Entity that have a total gross fair market value equal to or

 

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more than forty percent (40%) of the total gross fair market value of all of the assets of the Referenced Entity immediately before such acquisition or acquisitions.

1.4 “ Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time. For purposes of the Plan and this Agreement, references to sections of the Code shall be deemed to include references to any applicable regulations thereunder and any successor or similar provision.

1.5 “ Comparison Group ” means the group of peer companies set forth on Exhibit A hereto; provided , that a company will be removed from the Comparison Group if it becomes a Merged Comparator Entity during the Performance Period. Determinations with respect to the Comparison Group shall be made by the Board in its sole discretion.

1.6 “ Current Employment Agreement ” means the Participant’s employment agreement with the Company or any of its Affiliates in effect as of the applicable date of determination.

1.7 “ Disability ” means that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Employer.

1.8 “ Employer ” means the Company and its Affiliates.

1.9 “ Employer’s Good Cause ” shall have the meaning given such term or a comparable term in the Current Employment Agreement; provided , that if there is no Current Employment Agreement or if such agreement does not include such term or a comparable term, “Employer’s Good Cause” means:

A. Participant’s failure to abide by the Employer’s policies and procedures, misconduct, insubordination, inattention to the Employer’s business, failure to perform the duties required of the Participant up to the standards established by the Employer’s senior management, or material breach of the Current Employment Agreement, which failure or breach is not cured by the Participant within ten (10) days after written notice thereof from the Employer specifying the facts and circumstances of the alleged failure or breach, provided , however , that such notice and opportunity to cure shall not be required if, in the good faith judgment of the Board, such breach is not capable of being cured within ten (10) days;

B. Participant’s failure or inability to apply for and obtain any license, qualification, clearance or other similar approval which the Employer or any regulatory authority which has jurisdiction over the Employer requests or requires that the Participant obtain;

 

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C. the Employer is directed by any governmental authority in Nevada, Michigan, Mississippi, Illinois, Macau S.A.R., or any other jurisdiction in which the Employer is engaged in a gaming business or where the Employer has applied to (or during the term of the Participant’s employment under the Current Employment Agreement, may apply to) engage in a gaming business to cease business with the Participant;

D. the Employer determines, in its reasonable judgment, that the Participant was, is or might be involved in, or is about to be involved in, any activity, relationship(s) or circumstance which could or does jeopardize the Employer’s business, reputation or licenses to engage in the gaming business; or

E. any of the Employer’s gaming business licenses are threatened to be, or are, denied, curtailed, suspended or revoked as a result of the Participant’s employment by the Employer or as a result of the Participant’s actions.

1.10 “ Ending Average Share Value ” means the sum of (a) the average closing price of either (i) the Shares or (ii) the stock of a member of the Comparison Group, as applicable, in any such case over the 60 calendar day period ending on the last day of the Performance Period plus (b) the sum of all dividends paid on (x) a Share or (y) a share of stock, as applicable, in any such case during the Performance Period (assuming such dividends are reinvested in Shares or stock, as applicable); provided , however , that in the event of a Change of Control prior to the third anniversary of the Effective Date, the “Ending Average Share Value” for purposes of the Company shall equal the sum of (I) the price per share of the Company’s Shares to be paid to the holders thereof in accordance with the definitive agreement governing the transaction constituting the Change of Control (or, in the absence of such agreement, the closing price per Share for the last trading day prior to the consummation of the Change of Control) and (II) the sum of all dividends paid on a Share during the Performance Period (assuming such dividends are reinvested in Shares).

1.11 “ Fair Market Value ” or “ FMV ” shall have the meaning set forth for such term in the Plan.

1.12 “ IPO ” means the initial public offering of Shares as contemplated pursuant to that certain Form S-11 filed on March 22, 2016.

1.13 “ Merged Comparator Entity ” means a company, other than a Bankrupt Comparator Entity, that is a member of the Comparison Group as of the Effective Date but that ceases to have a class of equity securities that is both registered under the Securities Exchange Act of 1934 and actively traded on a U.S. public securities market during the Performance Period. Determinations with respect to a Merged Comparator Entity shall be made by the Board in its sole discretion.

1.14 “ Participant’s Good Cause ” shall have the meaning given such term or a comparable term in the Current Employment Agreement; provided , that if there is no Current Employment Agreement or if such agreement does not include such term or a comparable term, “Participant’s Good Cause” means:

 

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A. The failure of the Employer to pay the Participant any compensation when due; or

B. A material reduction in the scope of duties or responsibilities of the Participant or any reduction in the Participant’s salary.

Within ten (10) days following the first occurrence of a breach constituting Participant’s Good Cause, the Participant shall give the Employer thirty (30) days’ advance written notice specifying the facts and circumstances of the alleged breach. During such thirty (30) day period, the Employer may either cure the breach (in which case such notice will be considered withdrawn) or declare that the Employer disputes that Participant’s Good Cause exists, in which case Participant’s Good Cause shall not exist until the dispute is resolved in accordance with the methods for resolving disputes specified in Exhibit B hereto.

1.15 “ Performance Period ” means the period beginning on the Effective Date and ending on third anniversary thereof, if earlier the date of consummation of a Change of Control.

1.16 “ Performance Share Units ” means an award of Performance Share Units granted to a Participant pursuant to Article 9 of the Plan.

1.17 “ Section 409A ” means Code Section 409A, the regulations thereunder promulgated by the United States Department of Treasury and other guidance issued thereunder.

1.18 “ Share ” means a share of Class A common shares representing limited liability company interests of the Company.

1.19 “ Total Shareholder Return ” or “ TSR ” means, with respect to (a) the Company or (b) any member of the Comparison Group (but, for avoidance of doubt, excluding any Merged Comparator Entity), the quotient of the Ending Average Share Value over the Beginning Average Share Price for the applicable entity, expressed as a percentage return; provided , however , that TSR for a Bankrupt Comparator Entity will be negative one hundred percent (-100%). Determinations with respect to TSR shall be made by the Board in its sole discretion.

2. Grant to Participant . The Company hereby grants to the Participant, subject to the terms and conditions of the Plan and this Agreement, and contingent upon the closing of the IPO, a target award of [●] Performance Share Units (the “ Target Award ”). Except as otherwise set forth in the Plan or this Agreement, (i) the grant of Performance Share Units represents the right to receive a percentage of the Target Award upon vesting of such Performance Share Units, with each Performance Share Unit that vests representing the right to receive one (1) Share upon vesting thereof, (ii) unless and until the Performance Share Units have vested in accordance with the terms of this Agreement, the Participant shall not have any right to delivery of the Shares underlying such Performance Share Units or any other consideration in respect thereof, and (iii) the portion of the Target Award that vests hereunder shall be paid to the Participant as set forth in Section 3 hereof.

 

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3. Terms and Conditions .

3.1 Vesting .

(i) Subject to Section 3.3 herein, a percentage of the Target Award shall vest as set forth in the table below based on the Company’s percentile rank of TSR against the Comparison Group over the Performance Period; provided , however , that, notwithstanding anything herein to the contrary, if the Company’s absolute TSR is negative during the Performance Period, the maximum portion of the Target Award that shall be eligible for vesting in accordance with the following table shall be 100%.

 

Performance Level

   Relative TSR Percentile    Vested % of Target Award

Maximum

   90th or greater    160%
   80th    145%
   70th    130%
   60th    115%

Target

   50th    100%
   40th    75%
   30th    50%

Threshold

   Below 30th    0%

(ii) In no event shall the Participant be awarded more than 160% of the Target Award.

(iii) If the Company’s percentile rank of TSR should fall between two of the percentiles set forth above, the percentage of the Target Award that shall vest shall be determined based on straight-line interpolation between the applicable figures.

(iv) Any Performance Share Units that are not vested as of the last day of the Performance Period shall immediately be forfeited and cancelled without consideration.

3.2 Payment . Any Performance Share Units which vest in accordance with Section 3.1 (following application of Section 3.3), and any Dividend Equivalent Rights which vest as set forth on Exhibit C hereto, shall be paid to the Participant in Shares, less applicable withholding taxes, within thirty (30) days following the last day of the Performance Period; provided , that any fractional Shares shall be paid in cash.

3.3 Termination of Service . Upon termination of employment (or other service) with the Employer for any reason on or prior to the last day of the Performance Period, the Performance Share Units shall be forfeited without any consideration; provided , however , that, upon termination of employment by the Employer without Employer’s Good Cause, by the Participant with Participant’s Good Cause, or due to the Participant’s death or Disability, a pro-rata portion of the Performance Share Units, if any, that would have become vested (but for such termination) under the schedule determined in Section 3.1 herein, shall vest, such proration determined based on the number of days Participant was employed during the Performance Period plus an additional twelve (12) months (or, if shorter, through the end of the Performance Period), and, together with any Dividend Equivalent Rights which vest as set forth on Exhibit C

 

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hereto, shall be paid on the same schedule determined in Section 3.2 herein; provided , however , that any Performance Share Units that would otherwise vest pursuant to the immediately preceding proviso shall be forfeited in the event the Participant breaches any post-termination covenant with the Company or its Affiliates in any employment agreement or otherwise (after taking into account any applicable cure period).

3.4 Board Discretion . The Board, in its discretion, may accelerate the vesting of the Target Award up to the maximum amount described in Section 3.1 above, at any time, subject to the terms of the Plan and this Agreement and Section 409A. If so accelerated, the Performance Share Units will be considered as having vested as of the date specified by the Board or an applicable written agreement, but the Board will have no right to accelerate any payment under this Agreement if such acceleration would cause this Agreement to fail to comply with, or give rise to any tax, penalty or interest under, Section 409A.

3.5 No Rights as a Shareholder; Dividend Equivalent Rights .

A. Participant will have no rights as a shareholder with respect to any Shares subject to Performance Share Units until the Performance Share Units have vested and Shares relating thereto have been issued and recorded on the records of the Company or its transfer agent or registrars.

B. In accordance with Article 13 of the Plan, this Award is granted together with Dividend Equivalent Rights, which shall be subject to the same vesting, forfeiture, settlement and other terms and conditions as the underlying Performance Share Units with respect to which they were credited. Such Dividend Equivalent Rights shall entitle the Participant to payment of an additional number of Performance Share Units under Section 3.2 calculated as set forth on Exhibit C hereto.

3.6 Limits on Transferability . The Performance Share Units granted under this Agreement may be transferred solely to a trust in which the Participant or the Participant’s spouse control the management of the assets. With respect to Performance Share Units, if any, that have been transferred to a trust, references in this Agreement to vesting related to such Performance Share Units shall be deemed to include such trust. Any transfer of Performance Share Units shall be subject to the terms and conditions of the Plan and this Agreement and the transferee shall be subject to the same terms and conditions as if it were the Participant. No interest of the Participant under this Agreement shall be subject to attachment, execution, garnishment, sequestration, the laws of bankruptcy or any other legal or equitable process.

3.7 Adjustments . The Award shall be subject to adjustment by the Board in accordance with Section 4.4 of the Plan in the case of certain corporate reorganization events.

3.8 No Right to Continued Performance of Services . The grant of the Performance Share Units does not confer upon the Participant any right to continue to be employed by the Company or any of its Affiliates nor may it interfere in any way with the right of the Company or any of its Affiliates for which the Participant performs services to terminate the Participant’s employment at any time.

 

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3.9 Compliance With Law and Regulations . The grant and vesting of Performance Share Units and the obligation of the Company to issue Shares under this Agreement are subject to all applicable federal and state laws, rules and regulations, including those related to disclosure of financial and other information to the Participant and to approvals by any government or regulatory agency as may be required. The Company shall not be required to issue or deliver any certificates for Shares prior to (A) the listing of such shares on any stock exchange on which the Shares may then be listed and (B) the completion of any registration or qualification of such shares under any federal or state law, or any rule or regulation of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable.

3.10 Change of Control . Upon the occurrence of a Change of Control, the Board is authorized (but not obligated) to make adjustments in the terms and conditions of the Award, including without limitation the following (or any combination thereof): (a) continuation or assumption of the Award under the Plan by the Company (if it is the surviving company or corporation) or by the surviving company or corporation or its parent; (b) substitution by the surviving company or corporation or its parent of awards with substantially the same terms for the Award (with appropriate adjustments to the type of consideration payable upon settlement of the Award); (c) accelerated exercisability, vesting and/or payment under the Award immediately prior to or upon the occurrence of such event or upon a termination of employment or other service following such event; and (d) if all or substantially all of the Company’s outstanding Shares transferred in exchange for cash consideration in connection with such Change of Control, cancellation of all or any portion of the Award for fair value (in the form of cash, shares, other property or any combination thereof) as determined in the sole discretion of the Board.

4. Investment Representation . The Participant must, within five (5) days of demand by the Company furnish the Company an agreement satisfactory to the Company in which the Participant represents that the Shares acquired upon vesting are being acquired for investment. The Company will have the right, at its election, to place legends on the certificates representing the Shares so being issued with respect to limitations on transferability imposed by federal and/or state laws, and the Company will have the right to issue “stop transfer” instructions to its transfer agent.

5. Participant Bound by Plan . The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof as amended from time to time.

6. Withholding . The Company or any Affiliate shall have the right and is hereby authorized to withhold, any applicable withholding taxes in respect of the Performance Share Units awarded by this Agreement, their grant, vesting or otherwise, and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such withholding taxes, which may include, without limitation, reducing the number of shares otherwise distributable to the Participant by the number of Shares whose Fair Market Value is equal to the amount of tax required to be withheld by the Company or any of its Affiliates as a result of the vesting or settlement or otherwise of the Performance Share Units.

 

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7. Notices . Any notice hereunder to the Company must be addressed to: MGM Growth Properties LLC, c/o MGM Resorts, 3600 Las Vegas Boulevard South, Las Vegas, Nevada 89109, Attention: Designated legal counsel for purposes of administration of the MGM Growth Properties LLC 2016 Omnibus Incentive Plan, and any notice hereunder to the Participant must be addressed to the Participant at the Participant’s last address on the records of the Company, subject to the right of either party to designate at any time hereafter in writing some other address. Any notice shall be deemed to have been duly given on personal delivery or three (3) days after being sent in a properly sealed envelope, addressed as set forth above, and deposited (with first class postage prepaid) in the United States mail.

8. Entire Agreement . This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any employment agreement between the Participant and the Company or any of its Affiliates whether previously entered into, currently effective or entered into in the future that includes terms and conditions regarding equity awards) which relate to the subject matter hereof.

9. Waiver . No waiver of any breach or condition of this Agreement shall be deemed a waiver of any other or subsequent breach or condition whether of like or different nature.

10. Participant Undertaking . The Participant agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or effect one or more of the obligations or restrictions imposed on either the Participant or the Performance Share Units pursuant to this Agreement.

11. Successors and Assigns . The provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the Participant’s estate, whether or not any such person shall have become a party to this Agreement and agreed in writing to be joined herein and be bound by the terms hereof.

12. Governing Law . The parties hereto agree that the validity, construction and interpretation of this Agreement shall be governed by the laws of the state of Nevada.

13. Arbitration . Except as otherwise provided in Exhibit B to this Agreement (which constitutes a material provision of this Agreement), disputes relating to this Agreement shall be resolved by arbitration pursuant to Exhibit B hereto.

14. Clawback Policy . By accepting this award the Participant hereby agrees that this award and any other compensation paid or payable to the Participant is subject to Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement (or any successor policy) as in effect from time to time, and that this award shall be considered incentive compensation for purposes of such policy. In addition, the Participant agrees that such policy may be amended from time to time by the Board in a manner designed to comply with applicable law and/or stock exchange listing requirements. The Participant also hereby agrees that the award granted hereunder and any other compensation payable to the Participant shall be subject

 

9

to recovery (in whole or in part) by the Company to the minimum extent required by applicable law and/or stock exchange listing requirements.

15. Amendment . This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto; provided , that the Company may alter, modify or amend this Agreement unilaterally if such change is not materially adverse to the Participant or to cause this Agreement to comply with applicable law or avoid the imposition of any tax, interest or penalty under Section 409A.

16. Severability . The provisions of this Agreement are severable and if any portion of this Agreement is declared contrary to any law, regulation or is otherwise invalid, in whole or in part, the remaining provisions of this Agreement shall nevertheless be binding and enforceable.

17. Execution . Each party agrees that an electronic, facsimile or digital signature or an online acceptance or acknowledgment will be accorded the full legal force and effect of a handwritten signature under Nevada law. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

18. Variation of Pronouns . All pronouns and any variations thereof contained herein shall be deemed to refer to masculine, feminine, neuter, singular or plural, as the identity of the person or persons may require.

19. Tax Treatment; Section 409A . The Participant shall be responsible for all taxes with respect to the Performance Share Units. The terms of this Award shall be subject to Section 20.12 of the Plan (relating to Section 409A), which shall be incorporated herein by reference.

[The remainder of this page is left blank intentionally.]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Performance Share Units Agreement as of the date first written above.

 

MGM GROWTH PROPERTIES LLC
By:  

 

Name:  
Title:  
PARTICIPANT
By:  

 

Name:  

 

[Signature Page to Performance Share Units Agreement]

EXHIBIT A

COMPARISON GROUP

 

1. [●]

 

A-1

EXHIBIT B

ARBITRATION

This Exhibit B sets forth the methods for resolving disputes should any arise under the Agreement, and accordingly, this Exhibit B shall be considered a part of the Agreement.

 

1. Except for a claim by either Participant or the Company for injunctive relief where such would be otherwise authorized by law, any controversy or claim arising out of or relating to the Agreement or the breach hereof including without limitation any claim involving the interpretation or application of the Agreement or the Plan, shall be submitted to binding arbitration in accordance with the employment arbitration rules then in effect of the Judicial Arbitration and Mediation Service (“ JAMS ”), to the extent not inconsistent with this paragraph. This Exhibit B covers any claim Participant might have against any officer, director, employee, or agent of the Company, or any of the Company’s subsidiaries, divisions, and Affiliates, and all successors and assigns of any of them. The promises by the Company and Participant to arbitrate differences, rather than litigate them before courts or other bodies, provide consideration for each other, in addition to other consideration provided under the Agreement.

 

2. Claims Subject to Arbitration : This Exhibit B contemplates mandatory arbitration to the fullest extent permitted by law. Only claims that are justiciable under applicable state or federal law are covered by this Exhibit B. Such claims include any and all alleged violations of any state or federal law whether common law, statutory, arising under regulation or ordinance, or any other law, brought by any current or former employees of the Company and its Affiliates.

 

3. Non-Waiver of Substantive Rights : This Exhibit B does not waive any rights or remedies available under applicable statutes or common law. However, it does waive Participant’s right to pursue those rights and remedies in a judicial forum. By signing the Agreement and the acknowledgment at the end of this Exhibit B, the undersigned Participant voluntarily agrees to arbitrate his or her claims covered by this Exhibit B.

 

4. Time Limit to Pursue Arbitration; Initiation : To ensure timely resolution of disputes, Participant and the Company must initiate arbitration within the statute of limitations (deadline for filing) provided for by applicable law pertaining to the claim. The failure to initiate arbitration within this time limit will bar any such claim. The parties understand that the Company and Participant are waiving any longer statutes of limitations that would otherwise apply, and any aggrieved party is encouraged to give written notice of any claim as soon as possible after the event(s) in dispute so that arbitration of any differences may take place promptly. The parties agree that the aggrieved party must, within the time frame provided by this Exhibit B, give written notice of a claim pursuant to Section 6 of the Agreement. In the event such notice is to be provided to the Company, the Participant shall provide a copy of such notice of a claim to the Company’s designated legal counsel for purposes of arbitration. Written notice shall identify and describe the nature of the claim, the supporting facts and the relief or remedy sought.

 

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5. Selecting an Arbitrator : This Exhibit B mandates Arbitration under the then current rules of the Judicial Arbitration and Mediation Service (JAMS) regarding employment disputes. The arbitrator shall be either a retired judge or an attorney experienced in employment law and licensed to practice in the state in which arbitration is convened. The parties shall select one arbitrator from among a list of three qualified neutral arbitrators provided by JAMS. If the parties are unable to agree on the arbitrator, each party shall strike one name and the remaining named arbitrator shall be selected.

 

6. Representation/Arbitration Rights and Procedures :

 

  a. Participant may be represented by an attorney of his/her choice at his/her own expense.

 

  b. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of Nevada (without regard to its choice of law provisions) and/or federal law when applicable. In all cases, this Exhibit B shall provide for the broadest level of arbitration of claims between the Company and Participant under Nevada or applicable federal law. The arbitrator is without jurisdiction to apply any different substantive law or law of remedies.

 

  c. The arbitrator shall have no authority to award non-economic damages or punitive damages except where such relief is specifically authorized by an applicable state or federal statute or common law. In such a situation, the arbitrator shall specify in the award the specific statute or other basis under which such relief is granted.

 

  d. The applicable law with respect to privilege, including attorney-client privilege, work product, and offers to compromise must be followed.

 

  e. The parties shall have the right to conduct reasonable discovery, including written and oral (deposition) discovery and to subpoena and/or request copies of records, documents and other relevant discoverable information consistent with the procedural rules of JAMS. The arbitrator shall decide disputes regarding the scope of discovery and shall have authority to regulate the conduct of any hearing and/or trial proceeding. The arbitrator shall have the right to entertain a motion to dismiss and/or motion for summary judgment.

 

  f. The parties shall exchange witness lists at least 30 days prior to the trial/hearing procedure. The arbitrator shall have subpoena power so that either Participant or the Company may summon witnesses. The arbitrator shall use the Federal Rules of Evidence. Both parties have the right to file a post hearing brief. Any party, at its own expense, may arrange for and pay the cost of a court reporter to provide a stenographic record of the proceedings.

 

  g. Any arbitration hearing or proceeding shall take place in private, not open to the public, in Las Vegas, Nevada.

 

7.

Arbitrator’s Award : The arbitrator shall issue a written decision containing the specific issues raised by the parties, the specific findings of fact, and the specific conclusions of

 

B-2

  law. The award shall be rendered promptly, typically within 30 days after conclusion of the arbitration hearing, or the submission of post-hearing briefs if requested. The arbitrator may not award any relief or remedy in excess of what a court could grant under applicable law. The arbitrator’s decision is final and binding on both parties. Judgment upon an award rendered by the arbitrator may be entered in any court having competent jurisdiction.

 

  a. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Exhibit B and to enforce an arbitration award.

 

  b. In the event of any administrative or judicial action by any agency or third party to adjudicate a claim on behalf of Participant which is subject to arbitration under this Exhibit B, Participant hereby waives the right to participate in any monetary or other recovery obtained by such agency or third party in any such action, and Participant’s sole remedy with respect to any such claim shall be any award decreed by an arbitrator pursuant to the provisions of this Exhibit B.

 

8. Fees and Expenses : The Company shall be responsible for paying any filing fee and the fees and costs of the arbitrator; provided, however, that if Participant is the party initiating the claim, Participant will contribute an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which Participant is (or was last) employed by the Company. Participant and the Company shall each pay for their own expenses, attorney’s fees (a party’s responsibility for his/her/its own attorney’s fees is only limited by any applicable statute specifically providing that attorney’s fees may be awarded as a remedy), and costs and fees regarding witness, photocopying and other preparation expenses. If any party prevails on a statutory claim that affords the prevailing party attorney’s fees and costs, or if there is a written agreement providing for attorney’s fees and/or costs, the arbitrator may award reasonable attorney’s fees and/or costs to the prevailing party, applying the same standards a court would apply under the law applicable to the claim(s).

 

9. The arbitration provisions of this Exhibit B shall survive the termination of Participant’s employment with the Company and its Affiliates and the expiration of the Agreement. These arbitration provisions can only be modified or revoked in a writing signed by both parties and which expressly states an intent to modify or revoke the provisions of this Exhibit B.

 

10. The arbitration provisions of this Exhibit B do not alter or affect the termination provisions of this Agreement.

 

11. Capitalized terms not defined in this Exhibit B shall have the same definition as in the Agreement to which this is Exhibit B.

 

12. If any provision of this Exhibit B is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of Exhibit B. All other provisions shall remain in full force and effect.

 

B-3

ACKNOWLEDGMENT

BOTH PARTIES ACKNOWLEDGE THAT: THEY HAVE CAREFULLY READ THIS EXHIBIT B IN ITS ENTIRETY, THEY UNDERSTAND ITS TERMS, EXHIBIT B CONSTITUTES A MATERIAL TERM AND CONDITION OF THE PERFORMANCE SHARE UNITS AGREEMENT BETWEEN THE PARTIES TO WHICH IT IS EXHIBIT B, AND THEY AGREE TO ABIDE BY ITS TERMS.

The parties also specifically acknowledge that by agreeing to the terms of this Exhibit B, they are waiving the right to pursue claims covered by this Exhibit B in a judicial forum and instead agree to arbitrate all such claims before an arbitrator without a court or jury. It is specifically understood that this Exhibit B does not waive any rights or remedies which are available under applicable state and federal statutes or common law. Both parties enter into this Exhibit B voluntarily and not in reliance on any promises or representation by the other party other than those contained in the Agreement or in this Exhibit B.

Participant further acknowledges that Participant has been given the opportunity to discuss this Exhibit B with Participant’s private legal counsel and that Participant has availed himself/herself of that opportunity to the extent Participant wishes to do so.

[The remainder of this page is left blank intentionally.]

 

B-4

EXHIBIT C

DIVIDEND EQUIVALENT RIGHTS

Pursuant to Section 3.5(B) of the Agreement, an aggregate number of Dividend Equivalent Rights shall be credited to the Participant as follows:

 

  1. Whenever a dividend is paid with respect to the Company’s Shares, a corresponding number of Target Dividend Equivalent Rights shall be credited to the Participant in a number of additional full and fractional Performance Share Units equal to the product of (a) the sum of (i) the number of Performance Share Units subject to the Target Award plus (ii) the sum of all Target Dividend Equivalent Rights calculated in respect of all previously paid dividends, and (b) a fraction equal to (i) the applicable per-Share dividend amount divided by (ii) the closing price of a Share on the dividend payment date (such product, a “ Target Dividend Equivalent Right ”).

 

  2. The determination of the number of Dividend Equivalent Rights which vest and are payable pursuant to Section 3.2 of the Agreement shall be determined as the product of (a) the sum of all Target Dividend Equivalent Rights determined in accordance with Section 3.5(B) and (b) a fraction equal to (i) the number of Performance Share Units which vest in accordance with Section 3.1 (following application of Section 3.3) divided by (ii) the number of Performance Share Units subject to the Target Award.

By way of example, assume:

 

  •   Target Award of 100 Performance Share Units (“ PSUs ”), with actual performance at 125% of Target Award.

 

  •   Effective Date of January 1, 2017, with Performance Period running through January 1, 2020.

 

  •   Closing price of $20/Share at all times.

 

  •   Regular dividend of $2/Share paid quarterly throughout the Performance Period, on the 15th of January, April, July and October of each year.

As of each dividend payment date, Target Dividend Equivalent Rights (“ Target DERs ”) credited to the Participant would be calculated as follows (with rounding to the nearest hundredth):

 

Dividend

Payment

Date

 

Number of Incremental

Target DERs Credited on Dividend Payment Date

 

Sum of All

Target DERs

Credited Through

Dividend Payment Date

1/15/17

  (100 PSUs + 0 PSUs) × ($2 / $20) = 10 PSUs   10 PSUs

4/15/17

  (100 PSUs + 10 PSUs) × ($2 / $20) = 11 PSUs   21 PSUs

7/15/17

  (100 PSUs + 21 PSUs) × ($2 / $20) = 12.10 PSUs   33.10 PSUs

10/15/17

  (100 PSUs + 33.10 PSUs) × ($2 / $20) = 13.31 PSUs   46.41 PSUs

1/15/18

  (100 PSUs + 46.41 PSUs) × ($2 / $20) = 14.64 PSUs   61.05 PSUs
4/15/18   (100 PSUs + 61.05 PSUs) × ($2 / $20) = 16.11 PSUs   77.16 PSUs

 

C-1

7/15/18   (100 PSUs + 77.16 PSUs) × ($2 / $20) = 17.72 PSUs   94.87 PSUs
10/15/18   (100 PSUs + 94.87 PSUs) × ($2 / $20) = 19.49 PSUs   114.36 PSUs
1/15/19   (100 PSUs + 114.36 PSUs) × ($2 / $20) = 21.44 PSUs   135.79 PSUs
4/15/19   (100 PSUs + 135.79 PSUs) × ($2 / $20) = 23.58 PSUs   159.37 PSUs
7/15/19   (100 PSUs + 159.37 PSUs) × ($2 / $20) = 25.94 PSUs   185.31 PSUs
10/15/19   (100 PSUs + 185.31 PSUs) × $2 / $20) = 28.53 PSUs   213.84 PSUs

The number of Dividend Equivalent Rights which actually vest and become payable would be calculated as follows (with rounding to nearest hundredth):

213.84 PSUs × (125 PSUs / 100 PSUs) = 267.30 PSUs

The sum of vested Performance Share Units and vested Dividend Equivalent Rights payable pursuant to Section 3.2 of the Agreement would be calculated as follows:

125 PSUs + 267.30 PSUs = 392.30 PSUs

The Award would be paid in the form of 392.00 Shares and $6 in cash (i.e., 0.30 fractional Shares × $20 / Share), less applicable withholding taxes.

 

C-2

Exhibit 10.12

MGM GROWTH PROPERTIES LLC

FORM OF PERFORMANCE SHARE UNITS AGREEMENT

 

 

Target No. of Performance Share Units: [●]

This Agreement (including its Exhibits, the “ Agreement ”) is made by and between MGM Growth Properties LLC, a Delaware limited liability company (the “ Company ”), and [●] (the “ Participant ”) with an effective date of [●] (the “ Effective Date ”).

RECITALS

A. The Board of Directors of the Company (the “ Board ”) has adopted the MGM Growth Properties LLC 2016 Omnibus Incentive Plan (the “ Plan ”), which provides for the granting of Performance Share Units (as that term is defined in Section 1 below) to selected service providers. Capitalized terms used and not defined in this Agreement shall have the same meanings as in the Plan.

B. The Board believes that the grant of Performance Share Units will stimulate the interest of selected employees in, and strengthen their desire to remain with, the Company and its Affiliates (as hereinafter defined).

C. In consideration of the Participant’s services to the Operating Partnership, the Board has authorized the grant of Performance Share Units to the Participant pursuant to the terms of the Plan and this Agreement.

D. The Board and the Participant intend that the Plan and this Agreement constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any employment agreement between the Participant and the Company or any of its Affiliates whether previously entered into, currently effective or entered into in the future) which relate to the subject matter hereof.

Accordingly, in consideration of the mutual covenants contained herein, the parties agree as follows:

1. Definitions.

1.1 “ Beginning Average Share Price ” means the average closing price of the Company’s Shares over the 60 calendar day period ending on the Effective Date.

1.2 “ Change of Control ” means, with respect to (x) the Company or (y) provided that it is an Affiliate of the Company at the relevant time, MGM (each of (x) and (y), a “ Referenced Entity ”), the first to occur of:

 

1

(A) the date that a reorganization, merger, consolidation, recapitalization, or similar transaction (other than a spinoff, exchange offer or similar transaction to or with the applicable Referenced Entity’s public shareholders) is consummated, unless: (i) at least 50% of the outstanding voting securities of the surviving or resulting entity (including, without limitation, an entity which as a result of such transaction owns the Company either directly or through one or more subsidiaries) (“Resulting Entity”) are beneficially owned, directly or indirectly, by the persons who were the beneficial owners of the outstanding voting securities of the Corporation immediately prior to such transaction in substantially the same proportions as their beneficial ownership, immediately prior to such transaction, of the outstanding voting securities of the Corporation and (ii) immediately following such transaction no person or persons acting as a group beneficially owns capital stock of the Resulting Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Resulting Entity;

(B) the date that a majority of members of the Referenced Entity’s Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Referenced Entity’s Board before the date of the appointment or election; provided that no individual shall be considered to be so endorsed if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Referenced Entity’s Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest;

(C) the date that any one person, or persons acting as a group, acquires (or has or have acquired as of the date of the most recent acquisition by such person or persons) beneficial ownership of stock of the Referenced Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Referenced Entity; or

(D) the date that any one person acquires, or persons acting as a group acquire (or has or have acquired as of the date of the most recent acquisition by such person or persons), assets from the Referenced Entity that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value of all of the assets of the Referenced Entity immediately before such acquisition or acquisitions.

1.3 “ Ending Average Share Value ” means (A) the average closing price of the Company’s Shares over the 60 calendar day period ending on the third anniversary of the Effective Date plus (B) the sum of all dividends paid on a Share during the period from the Effective Date to the third anniversary thereof (assuming such dividends are reinvested in Shares); provided , however , that in the event of a Change of Control prior to such third anniversary, the “Ending Average Share Value” shall equal (i) the price per share of the Company’s Shares to be paid to the holders thereof in accordance with the definitive agreement governing the transaction constituting the Change of Control (or, in the absence of such agreement, the closing price per Share for the last trading day prior to the consummation of the Change of Control) plus (ii) the sum of all dividends paid on a Share during the period from the Effective Date to the date of such Change of Control (assuming such dividends are reinvested in Shares).

 

2

1.4 “ Fair Market Value ” or “ FMV ” shall have the meaning set forth for such term in the Plan.

1.5 “ Performance Period ” means the period beginning on the Effective Date and ending on the third anniversary thereof or, if earlier, the date of a Change of Control.

1.6 “ Performance Share Units ” means an award of Performance Share Units granted to a Participant pursuant to Article 9 of the Plan.

1.7 “ Section 409A ” means Code Section 409A, the regulations thereunder promulgated by the United States Department of Treasury and other guidance issued thereunder.

1.8 “ Share ” means a share of Class A common shares representing limited liability company interests of the Company.

1.9 “ Share Performance Multiplier ” means the Company’s Ending Average Share Value divided by the Target Price.

1.10 “ Target Price ” means 125% of the Company’s Beginning Average Share Price.

2. Grant to Participant . The Company hereby grants to the Participant, subject to the terms and conditions of the Plan and this Agreement, an award (the “ Award ”) with a target of [●] Performance Share Units (the “ Target Award ”). Except as otherwise set forth in the Plan or this Agreement, the grant of Performance Share Units represents the right to receive a percentage of the Target Award, with each Performance Share Unit that becomes payable representing the right to receive one (1) Share in respect thereof and the portion of the Target Award that becomes payable hereunder shall be paid as set forth in Section 3.2.

3. Terms and Conditions.

3.1 Performance Period and Payment Eligibility . A percentage of the Target Award shall be payable based on the performance of the Company’s Stock price (plus dividends) over the Performance Period.

(i) Target . The Participant shall be paid the Target Award if the Ending Average Share Value equals the Target Price.

(ii) Threshold . The Participant shall not be paid any portion of the Target Award unless the Ending Average Share Value is at least 60% of the Target Price. If the Ending Average Share Value is below 60% of the Target Price, all of the Performance Share Units awarded by this Agreement shall immediately be forfeited and cancelled without consideration as of the last day of the Performance Period.

(iii) Maximum . In no event shall the Participant be awarded more than 160% of the Target Award.

(iv) Calculation . In the event that the Ending Average Share Value is at least 60% or more of the Target Price, then the Participant will receive a portion of the Target

 

3

Award equal to the amount of the Target Award multiplied by the Share Performance Multiplier; provided , however , in no event shall the Share Price Multiplier be greater than 1.6.

3.2 Vesting; Payment . The Performance Share Units shall be fully vested as of the Date of Grant and shall not be subject to forfeiture in the event Participant’s employment with Employer terminates for any reason. For the avoidance of doubt, the Performance Share Units shall be paid out under Section 2 notwithstanding any prior termination of employment. The Performance Share Units, and any Dividend Equivalent Rights which are earned as set forth on Exhibit B hereto, shall be paid to the Participant in Shares, less applicable withholding taxes, within thirty (30) days following the end of the Performance Period; provided , that any fractional Shares shall be paid in cash.

3.3 No Rights as a Stockholder; Dividend Equivalent Rights .

A. Participant will have no rights as a stockholder with respect to any Shares subject to Performance Share Units until the Shares relating thereto have been issued and recorded on the records of the Company or its transfer agent or registrars.

B. In accordance with Article 13 of the Plan, this Award is granted together with Dividend Equivalent Rights, which shall be subject to the same forfeiture, settlement and other terms and conditions as the underlying Performance Share Units with respect to which they were credited. Such Dividend Equivalent Rights shall entitle the Participant to payment of an additional number of Performance Share Units under Section 3.2 calculated as set forth on Exhibit B hereto.

3.4 Limits on Transferability . The Performance Share Units granted under this Agreement may be transferred solely to a trust in which the Participant or the Participant’s spouse control the management of the assets. Any transfer of Performance Share Units shall be subject to the terms and conditions of the Plan and this Agreement and the transferee shall be subject to the same terms and conditions as if it were the Participant. No interest of the Participant under this Agreement shall be subject to attachment, execution, garnishment, sequestration, the laws of bankruptcy or any other legal or equitable process.

3.5 Adjustments . The Award shall be subject to adjustment by the Board in accordance with Section 4.4 of the Plan in the case of certain corporate reorganization events.

3.6 No Right to Continued Performance of Services . The grant of the Performance Share Units does not confer upon the Participant any right to continue to be employed by the Company or any of its Affiliates nor may it interfere in any way with the right of the Company or any of its Affiliates for which the Participant performs services to terminate the Participant’s employment at any time.

3.7 Compliance With Law and Regulations . The grant of Performance Share Units and the obligation of the Company to issue Shares under this Agreement are subject to all applicable federal and state laws, rules and regulations, including those related to disclosure of financial and other information to the Participant and to approvals by any government or regulatory agency as may be required. The Company shall not be required to issue or deliver any certificates for Shares prior to (A) the listing of such shares on any stock exchange on which the Share may then be listed and (B) the completion of any registration or qualification of such

 

4

shares under any federal or state law, or any rule or regulation of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable.

3.8 Change of Control . Upon the occurrence of a Change of Control, the Board is authorized (but not obligated) to make adjustments in the terms and conditions of the Award, including without limitation the following (or any combination thereof): (a) continuation or assumption of the Award under the Plan by the Company (if it is the surviving company or corporation) or by the surviving company or corporation or its parent; (b) substitution by the surviving company or corporation or its parent of awards with substantially the same terms for the Award (with appropriate adjustments to the type of consideration payable upon settlement of the Award); (c) accelerated exercisability, vesting and/or payment under the Award immediately prior to or upon the occurrence of such event or upon a termination of employment or other service following such event; and (d) if all or substantially all of the Company’s outstanding Shares transferred in exchange for cash consideration in connection with such Change of Control, cancellation of all or any portion of the Award for fair value (in the form of cash, shares, other property or any combination thereof) as determined in the sole discretion of the Board.

4. Investment Representation . The Participant must, within five (5) days of demand by the Company furnish the Company an agreement satisfactory to the Company in which the Participant represents that the Shares acquired upon payment are being acquired for investment. The Company will have the right, at its election, to place legends on the certificates representing the Shares so being issued with respect to limitations on transferability imposed by federal and/or state laws, and the Company will have the right to issue “stop transfer” instructions to its transfer agent.

5. Participant Bound by Plan . The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof as amended from time to time.

6. Withholding . The Company or any Affiliate shall have the right and is hereby authorized to withhold, any applicable withholding taxes in respect of the Performance Share Units awarded by this Agreement, their grant or otherwise, and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such withholding taxes, which may include, without limitation, reducing the number of shares otherwise distributable to the Participant by the number of Shares whose Fair Market Value is equal to the amount of tax required to be withheld by the Company or any of its Affiliates as a result of the settlement or otherwise of the Performance Share Units.

7. Notices . Any notice hereunder to the Company must be addressed to: MGM Growth Properties LLC, c/o MGM Resorts, 3600 Las Vegas Boulevard South, Las Vegas, Nevada 89109, Attention: Designated legal counsel for purposes of administration of the MGM Growth Properties LLC 2016 Omnibus Incentive Plan, and any notice hereunder to the Participant must be addressed to the Participant at the Participant’s last address on the records of the Company, subject to the right of either party to designate at any time hereafter in writing some other address. Any notice shall be deemed to have been duly given on personal delivery or three (3) days after being sent in a properly sealed envelope, addressed as set forth above, and deposited (with first class postage prepaid) in the United States mail.

 

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8. Entire Agreement . This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any employment agreement between the Participant and the Company or any of its Affiliates, whether previously entered into, currently effective or entered into in the future that includes terms and conditions regarding equity awards) which relate to the subject matter hereof.

9. Waiver . No waiver of any breach or condition of this Agreement shall be deemed a waiver of any other or subsequent breach or condition whether of like or different nature.

10. Participant Undertaking . The Participant agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or effect one or more of the obligations or restrictions imposed on either the Participant or the Performance Share Units pursuant to this Agreement.

11. Successors and Assigns . The provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the Participant’s estate, whether or not any such person shall have become a party to this Agreement and agreed in writing to be joined herein and be bound by the terms hereof.

12. Governing Law . The parties hereto agree that the validity, construction and interpretation of this Agreement shall be governed by the laws of the state of Nevada.

13. Arbitration . Except as otherwise provided in Exhibit A to this Agreement (which constitutes a material provision of this Agreement), disputes relating to this Agreement shall be resolved by arbitration pursuant to Exhibit A hereto.

14. Clawback Policy . By accepting this award the Participant hereby agrees that this award and any other compensation paid or payable to the Participant is subject to Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement (or any successor policy) as in effect from time to time, and that this award shall be considered incentive compensation for purposes of such policy. In addition, the Participant agrees that such policy may be amended from time to time by the Board in a manner designed to comply with applicable law and/or stock exchange listing requirements. The Participant also hereby agrees that the award granted hereunder and any other compensation payable to the Participant shall be subject to recovery (in whole or in part) by the Company to the minimum extent required by applicable law and/or stock exchange listing requirements.

15. Amendment . This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto; provided that the Company may alter, modify or amend this Agreement unilaterally if such change is not materially adverse to the Participant or to cause this Agreement to comply with applicable law or avoid the imposition of any tax, interest or penalty under Section 409A.

16. Severability . The provisions of this Agreement are severable and if any portion of this Agreement is declared contrary to any law, regulation or is otherwise invalid, in whole or in part, the remaining provisions of this Agreement shall nevertheless be binding and enforceable.

 

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17. Execution . Each party agrees that an electronic, facsimile or digital signature or an online acceptance or acknowledgment will be accorded the full legal force and effect of a handwritten signature under Nevada law. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

18. Variation of Pronouns . All pronouns and any variations thereof contained herein shall be deemed to refer to masculine, feminine, neuter, singular or plural, as the identity of the person or persons may require.

19. Tax Treatment; Section 409A . The Participant shall be responsible for all taxes with respect to the Performance Share Units. The terms of this Award shall be subject to Section 20.12 of the Plan (relating to Section 409A), which shall be incorporated herein by reference.

[The remainder of this page is left blank intentionally.]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Performance Share Units Agreement as of the date first written above.

 

MGM GROWTH PROPERTIES LLC
By:  

 

Name:  
Title:  
PARTICIPANT
By:  

 

Name:  

[Signature Page to Performance Share Units Agreement]

EXHIBIT A

ARBITRATION

This Exhibit A sets forth the methods for resolving disputes should any arise under the Agreement, and accordingly, this Exhibit A shall be considered a part of the Agreement.

 

1. Except for a claim by either Participant or the Company for injunctive relief where such would be otherwise authorized by law, any controversy or claim arising out of or relating to the Agreement or the breach hereof including without limitation any claim involving the interpretation or application of the Agreement or the Plan, shall be submitted to binding arbitration in accordance with the employment arbitration rules then in effect of the Judicial Arbitration and Mediation Service (“JAMS”), to the extent not inconsistent with this paragraph. This Exhibit A covers any claim Participant might have against any officer, director, employee, or agent of the Company, or any of the Company’s subsidiaries, divisions, and Affiliates, and all successors and assigns of any of them. The promises by the Company and Participant to arbitrate differences, rather than litigate them before courts or other bodies, provide consideration for each other, in addition to other consideration provided under the Agreement.

 

2. Claims Subject to Arbitration . This Exhibit A contemplates mandatory arbitration to the fullest extent permitted by law. Only claims that are justiciable under applicable state or federal law are covered by this Exhibit A. Such claims include any and all alleged violations of any state or federal law whether common law, statutory, arising under regulation or ordinance, or any other law, brought by any current or former employees of the Company and its Affiliates.

 

3. Non-Waiver of Substantive Rights . This Exhibit A does not waive any rights or remedies available under applicable statutes or common law. However, it does waive Participant’s right to pursue those rights and remedies in a judicial forum. By signing the Agreement and the acknowledgment at the end of this Exhibit A, the undersigned Participant voluntarily agrees to arbitrate his or her claims covered by this Exhibit A.

 

4. Time Limit to Pursue Arbitration; Initiation : To ensure timely resolution of disputes, Participant and the Company must initiate arbitration within the statute of limitations (deadline for filing) provided for by applicable law pertaining to the claim. The failure to initiate arbitration within this time limit will bar any such claim. The parties understand that the Company and Participant are waiving any longer statutes of limitations that would otherwise apply, and any aggrieved party is encouraged to give written notice of any claim as soon as possible after the event(s) in dispute so that arbitration of any differences may take place promptly. The parties agree that the aggrieved party must, within the time frame provided by this Exhibit A, give written notice of a claim pursuant to Section 7 of the Agreement. In the event such notice is to be provided to the Company, the Participant shall provide a copy of such notice of a claim to the Company’s designated legal counsel for purposes of arbitration. Written notice shall identify and describe the nature of the claim, the supporting facts and the relief or remedy sought.

 

5.

Selecting an Arbitrator : This Exhibit A mandates Arbitration under the then current rules of the Judicial Arbitration and Mediation Service (JAMS) regarding employment

 

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  disputes. The arbitrator shall be either a retired judge or an attorney experienced in employment law and licensed to practice in the state in which arbitration is convened. The parties shall select one arbitrator from among a list of three qualified neutral arbitrators provided by JAMS. If the parties are unable to agree on the arbitrator, each party shall strike one name and the remaining named arbitrator shall be selected.

 

6. Representation/Arbitration Rights and Procedures:

 

  a. Participant may be represented by an attorney of his/her choice at his/her own expense.

 

  b. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of Nevada (without regard to its choice of law provisions) and/or federal law when applicable. In all cases, this Exhibit A shall provide for the broadest level of arbitration of claims between the Company and Participant under Nevada or applicable federal law. The arbitrator is without jurisdiction to apply any different substantive law or law of remedies.

 

  c. The arbitrator shall have no authority to award non-economic damages or punitive damages except where such relief is specifically authorized by an applicable state or federal statute or common law. In such a situation, the arbitrator shall specify in the award the specific statute or other basis under which such relief is granted.

 

  d. The applicable law with respect to privilege, including attorney-client privilege, work product, and offers to compromise must be followed.

 

  e. The parties shall have the right to conduct reasonable discovery, including written and oral (deposition) discovery and to subpoena and/or request copies of records, documents and other relevant discoverable information consistent with the procedural rules of JAMS. The arbitrator shall decide disputes regarding the scope of discovery and shall have authority to regulate the conduct of any hearing and/or trial proceeding. The arbitrator shall have the right to entertain a motion to dismiss and/or motion for summary judgment.

 

  f. The parties shall exchange witness lists at least 30 days prior to the trial/hearing procedure. The arbitrator shall have subpoena power so that either Participant or the Company may summon witnesses. The arbitrator shall use the Federal Rules of Evidence. Both parties have the right to file a post hearing brief. Any party, at its own expense, may arrange for and pay the cost of a court reporter to provide a stenographic record of the proceedings.

 

  g. Any arbitration hearing or proceeding shall take place in private, not open to the public, in Las Vegas, Nevada.

 

7.

Arbitrator’s Award : The arbitrator shall issue a written decision containing the specific issues raised by the parties, the specific findings of fact, and the specific conclusions of law. The award shall be rendered promptly, typically within 30 days after conclusion of the arbitration hearing, or the submission of post-hearing briefs if requested. The arbitrator may not award any relief or remedy in excess of what a court could grant under

 

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  applicable law. The arbitrator’s decision is final and binding on both parties. Judgment upon an award rendered by the arbitrator may be entered in any court having competent jurisdiction.

 

  a. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Exhibit A and to enforce an arbitration award.

 

  b. In the event of any administrative or judicial action by any agency or third party to adjudicate a claim on behalf of Participant which is subject to arbitration under this Exhibit A, Participant hereby waives the right to participate in any monetary or other recovery obtained by such agency or third party in any such action, and Participant’s sole remedy with respect to any such claim shall be any award decreed by an arbitrator pursuant to the provisions of this Exhibit A.

 

8. Fees and Expenses : The Company shall be responsible for paying any filing fee and the fees and costs of the arbitrator; provided, however, that if Participant is the party initiating the claim, Participant will contribute an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which Participant is (or was last) employed by the Company. Participant and the Company shall each pay for their own expenses, attorney’s fees (a party’s responsibility for his/her/its own attorney’s fees is only limited by any applicable statute specifically providing that attorney’s fees may be awarded as a remedy), and costs and fees regarding witness, photocopying and other preparation expenses. If any party prevails on a statutory claim that affords the prevailing party attorney’s fees and costs, or if there is a written agreement providing for attorney’s fees and/or costs, the arbitrator may award reasonable attorney’s fees and/or costs to the prevailing party, applying the same standards a court would apply under the law applicable to the claim(s).

 

9. The arbitration provisions of this Exhibit A shall survive the termination of Participant’s employment with the Company and its Affiliates and the expiration of the Agreement. These arbitration provisions can only be modified or revoked in a writing signed by both parties and which expressly states an intent to modify or revoke the provisions of this Exhibit A.

 

10. The arbitration provisions of this Exhibit A do not alter or affect the termination provisions of this Agreement.

 

11. Capitalized terms not defined in this Exhibit A shall have the same definition as in the Agreement to which this is Exhibit A.

 

12. If any provision of this Exhibit A is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of Exhibit A. All other provisions shall remain in full force and effect.

 

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ACKNOWLEDGMENT

BOTH PARTIES ACKNOWLEDGE THAT: THEY HAVE CAREFULLY READ THIS EXHIBIT A IN ITS ENTIRETY, THEY UNDERSTAND ITS TERMS, EXHIBIT A CONSTITUTES A MATERIAL TERM AND CONDITION OF THE PERFORMANCE SHARE UNITS AGREEMENT BETWEEN THE PARTIES TO WHICH IT IS EXHIBIT A, AND THEY AGREE TO ABIDE BY ITS TERMS.

The parties also specifically acknowledge that by agreeing to the terms of this Exhibit A, they are waiving the right to pursue claims covered by this Exhibit A in a judicial forum and instead agree to arbitrate all such claims before an arbitrator without a court or jury. It is specifically understood that this Exhibit A does not waive any rights or remedies which are available under applicable state and federal statutes or common law. Both parties enter into this Exhibit A voluntarily and not in reliance on any promises or representation by the other party other than those contained in the Agreement or in this Exhibit A.

Participant further acknowledges that Participant has been given the opportunity to discuss this Exhibit A with Participant’s private legal counsel and that Participant has availed himself/herself of that opportunity to the extent Participant wishes to do so.

[The remainder of this page is left blank intentionally.]

 

A-4

EXHIBIT B

DIVIDEND EQUIVALENT RIGHTS

Pursuant to Section 3.3(B) of the Agreement, an aggregate number of Dividend Equivalent Rights shall be credited to the Participant as follows:

 

  1. Whenever a dividend is paid with respect to the Company’s Shares, a corresponding number of Target Dividend Equivalent Rights shall be credited to the Participant in a number of additional full and fractional Performance Share Units equal to the product of (a) the sum of (i) the number of Performance Share Units subject to the Target Award plus (ii) the sum of all Target Dividend Equivalent Rights calculated in respect of all previously paid dividends, and (b) a fraction equal to (i) the applicable per-Share dividend amount divided by (ii) the closing price of a Share on the dividend payment date (such product, a “ Target Dividend Equivalent Right ”).

 

  2. The determination of the number of Dividend Equivalent Rights which are payable pursuant to Section 3.2 of the Agreement shall be determined as the product of (a) the sum of all Target Dividend Equivalent Rights determined in accordance with Section 3.5(B) and (b) a fraction equal to (i) the number of Performance Share Units which are earned in accordance with Section 3.1 divided by (ii) the number of Performance Share Units subject to the Target Award.

By way of example, assume:

 

  •   Target Award of 100 Performance Share Units (“ PSUs ”), with actual performance yielding a Share Performance Multiplier of 1.25.

 

  •   Effective Date of January 1, 2017, with Performance Period running through January 1, 2020.

 

  •   Closing price of $20/Share at all times.

 

  •   Regular dividend of $2/Share paid quarterly throughout the Performance Period, on the 15th of January, April, July and October of each year.

As of each dividend payment date, Target Dividend Equivalent Rights (“ Target DERs ”) credited to the Participant would be calculated as follows (with rounding to the nearest hundredth):

 

Dividend

Payment

Date

  

Number of Incremental

Target DERs Credited on Dividend Payment Date

  

Sum of All

Target DERs

Credited Through
Dividend Payment Date

1/15/17

   (100 PSUs + 0 PSUs) × ($2 / $20) = 10 PSUs    10 PSUs

4/15/17

   (100 PSUs + 10 PSUs) × ($2 / $20) = 11 PSUs    21 PSUs

7/15/17

   (100 PSUs + 21 PSUs) × ($2 / $20) = 12.10 PSUs    33.10 PSUs

10/15/17

   (100 PSUs + 33.10 PSUs) × ($2 / $20) = 13.31 PSUs    46.41 PSUs

1/15/18

   (100 PSUs + 46.41 PSUs) × ($2 / $20) = 14.64 PSUs    61.05 PSUs

4/15/18

   (100 PSUs + 61.05 PSUs) × ($2 / $20) = 16.11 PSUs    77.16 PSUs

 

B-1

7/15/18    (100 PSUs + 77.16 PSUs) × ($2 / $20) = 17.72 PSUs    94.87 PSUs
10/15/18    (100 PSUs + 94.87 PSUs) × ($2 / $20) = 19.49 PSUs    114.36 PSUs
1/15/19    (100 PSUs + 114.36 PSUs) × ($2 / $20) = 21.44 PSUs    135.79 PSUs
4/15/19    (100 PSUs + 135.79 PSUs) × ($2 / $20) = 23.58 PSUs    159.37 PSUs
7/15/19    (100 PSUs + 159.37 PSUs) × ($2 / $20) = 25.94 PSUs    185.31 PSUs
10/15/19    (100 PSUs + 185.31 PSUs) × $2 / $20) = 28.53 PSUs    213.84 PSUs

The number of Dividend Equivalent Rights which actually become payable would be calculated as follows (with rounding to nearest hundredth):

213.84 PSUs × (125 PSUs / 100 PSUs) = 267.30 PSUs

The sum of earned Performance Share Units and earned Dividend Equivalent Rights payable pursuant to Section 3.2 of the Agreement would be calculated as follows:

125 PSUs + 267.30 PSUs = 392.30 PSUs

The Award would be paid in the form of 392.00 Shares and $6 in cash (i.e., 0.30 fractional Shares × $20 / Share), less applicable withholding taxes.

 

B-2

Exhibit 10.13

MGM GROWTH PROPERTIES LLC

FORM OF RESTRICTED SHARE UNITS AGREEMENT

(NON-EMPLOYEE DIRECTOR)

 

 

No. of Restricted Share Units: [●]

This Restricted Share Units Agreement (including its Exhibit, the “ Agreement ”) is made by and between MGM Growth Properties LLC, a Delaware limited liability company (the “ Company ”), and [●] (the “ Participant ”) with an effective date of [●].

RECITALS

A. The Board of Directors of the Company (the “ Board ”) has adopted the MGM Growth Properties LLC 2016 Omnibus Incentive Plan (the “ Plan ”), which provides for the granting of Restricted Share Units (as that term is defined in Section 1 below) to selected service providers. Capitalized terms used and not defined in this Agreement shall have the same meanings as in the Plan.

B. The Board believes that the grant of Restricted Share Units will stimulate the interest of selected Directors in, and strengthen their desire to remain with, the Company or any of its Affiliates (as hereinafter defined).

C. In consideration of the Participant’s services to the Company, the Board has authorized the grant of Restricted Share Units to the Participant pursuant to the terms of the Plan and this Agreement.

D. The Board and the Participant intend that the Plan and this Agreement constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any agreement between the Participant and the Company or any of its Affiliates, whether previously entered into, currently effective or entered into in the future) which relate to the subject matter hereof.

Accordingly, in consideration of the mutual covenants contained herein, the parties agree as follows:

1. Definitions .

1.1 “ Change of Control ” means, with respect to (x) the Company or (y) provided that it is an Affiliate of the Company at the relevant time, MGM (each of (x) and (y), a “ Referenced Entity ”), the first to occur of:

(A) the date that a reorganization, merger, consolidation, recapitalization, or similar transaction (other than a spinoff, exchange offer or similar transaction

to or with the applicable Referenced Entity’s public shareholders) is consummated, unless: (i) at least 50% of the outstanding voting securities of the surviving or resulting entity (including, without limitation, an entity which as a result of such transaction owns the Company either directly or through one or more subsidiaries) (“Resulting Entity”) are beneficially owned, directly or indirectly, by the persons who were the beneficial owners of the outstanding voting securities of the Corporation immediately prior to such transaction in substantially the same proportions as their beneficial ownership, immediately prior to such transaction, of the outstanding voting securities of the Corporation and (ii) immediately following such transaction no person or persons acting as a group beneficially owns capital stock of the Resulting Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Resulting Entity;

(B) the date that a majority of members of the Referenced Entity’s Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Referenced Entity’s Board before the date of the appointment or election; provided that no individual shall be considered to be so endorsed if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Referenced Entity’s Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest;

(C) the date that any one person, or persons acting as a group, acquires (or has or have acquired as of the date of the most recent acquisition by such person or persons) beneficial ownership of stock of the Referenced Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Referenced Entity; or

(D) the date that any one person acquires, or persons acting as a group acquire (or has or have acquired as of the date of the most recent acquisition by such person or persons), assets from the Referenced Entity that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value of all of the assets of the Referenced Entity immediately before such acquisition or acquisitions.

1.2 “ Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time. For purposes of the Plan and this Agreement, references to sections of the Code shall be deemed to include references to any applicable regulations thereunder and any successor or similar provision.

1.3 “ Deferred Compensation Plan ” means the MGM Growth Properties LLC 2016 Deferred Compensation Plan for Non-Employee Directors.

1.4 “ Disability ” means that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement

 

2

benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company and its Affiliates.

1.5 “ Fair Market Value ” or “ FMV ” shall have the meaning set forth for such term in the Plan.

1.6 “ Restricted Share Units ” means an award of Restricted Share Units granted to a Participant pursuant to Article 8 of the Plan.

1.7 “ Section 409A ” means Code Section 409A, the regulations thereunder promulgated by the United States Department of Treasury and other guidance issued thereunder.

1.8 “ Share ” means a share of Class A common shares representing limited liability company interests of the Company.

2. Grant to Participant . The Company hereby grants to the Participant, subject to the terms and conditions of the Plan and this Agreement, and contingent upon the closing of the initial public offering of Shares as contemplated by that certain Form S-11 filed on March 22, 2016, an award of [●] Restricted Share Units (the “ Award ”). Except as otherwise set forth in the Plan or this Agreement, (i) each Restricted Share Unit represents the right to receive one (1) Share upon vesting of such Restricted Share Units, (ii) unless and until the Restricted Share Units have vested in accordance with the terms of this Agreement, the Participant shall not have any right to delivery of the Shares underlying such Restricted Share Units or any other consideration in respect thereof and (iii) each Restricted Share Unit that vests, and any Dividend Equivalent Rights earned under Section 3.4(B), shall be paid to the Participant in Shares within thirty (30) days following the date that the Restricted Share Unit vests or the date(s) set forth in Sections 3.1 and 3.2, as applicable, unless such payment is deferred pursuant to the terms of the Deferred Compensation Plan, provided , that any fractional Shares shall be paid in cash.

3. Terms and Conditions .

3.1 Vesting Schedule . Subject to Section 3.2 and the Participant’s continued service on the Board through the Vesting Date, the Restricted Share Units shall vest in full on the earlier of [●] or the date of the next annual meeting of the Company’s shareholders following the date of grant of the Restricted Share Units (the “Vesting Date”). The Restricted Share Units that vest on the Vesting Date, and any Dividend Equivalent Rights earned under Section 3.4(B), shall be paid to the Participant in Shares within thirty (30) days following the Vesting Date, unless such payment is deferred pursuant to the terms of the Deferred Compensation Plan, provided , that any fractional Shares shall be paid in cash.

3.2 Vesting at Cessation of Board Service . Upon cessation of service on the Board for any reason, the unvested portion of the Restricted Share Units shall be forfeited without any consideration; provided , however, that, upon cessation of service on the Board due to the Participant’s death, Disability or voluntary separation after five years of Board service, any unvested Restricted Share Units, and any Dividend Equivalent Rights earned under Section 3.4(B), shall become immediately vested and shall be paid in Shares within thirty (30) days after such event, unless such payment is deferred pursuant to the terms of the Deferred Compensation Plan, provided , that any fractional Shares shall be paid in cash.

 

3

3.3 Board Discretion . The Board, in its discretion, may accelerate the vesting of the balance, or some lesser portion, of the Participant’s unvested Restricted Share Units at any time, subject to the terms of the Plan and this Agreement. If so accelerated, the Restricted Share Units will be considered as having vested as of the date specified by the Board or an applicable written agreement but the Board will have no right to accelerate any payment under this Agreement if such acceleration would cause this Agreement to fail to comply with, or give rise to tax, penalties or interest under, Section 409A.

3.4 No Rights as a Shareholder; Dividend Equivalent Rights .

A. Participant will have no rights as a shareholder with respect to any Shares subject to Restricted Share Units until the Restricted Share Units have vested and Shares relating thereto have been issued and recorded on the records of the Company or its transfer agent or registrars.

B. In accordance with Article 13 of the Plan, this Award is granted together with Dividend Equivalent Rights. Whenever a dividend is paid with respect to the Company’s Shares, a corresponding Dividend Equivalent Right shall be credited with respect to each outstanding Restricted Share Unit then held by the Participant in a number of additional full and fractional Restricted Share Units calculated based on the Fair Market Value of the Shares at the time such dividend is paid. Any such additional Restricted Share Units shall be subject to the same vesting, forfeiture, settlement and other terms and conditions as the underlying Restricted Share Units with respect to which they were credited.

3.5 Limits on Transferability . The Restricted Share Units granted under this Agreement may be transferred solely to a trust in which the Participant or the Participant’s spouse control the management of the assets. With respect to Restricted Share Units, if any, that have been transferred to a trust, references in this Agreement to vesting related to such Restricted Share Units shall be deemed to include such trust. Any transfer of Restricted Share Units shall be subject to the terms and conditions of the Plan and this Agreement and the transferee shall be subject to the same terms and conditions as if it were the Participant. No interest of the Participant under this Agreement shall be subject to attachment, execution, garnishment, sequestration, the laws of bankruptcy or any other legal or equitable process.

3.6 Adjustments . The Award shall be subject to adjustment by the Board in accordance with Section 4.4 of the Plan in the case of certain corporate reorganization events.

3.7 No Right to Continued Performance of Services . The grant of the Restricted Share Units does not confer upon the Participant any right to continue to serve on the Board, nor may it interfere in any way with the right of the Company or the Board to terminate the Participant’s services at any time.

3.8 Compliance With Law and Regulations . The grant and vesting of Restricted Share Units and the obligation of the Company to issue Shares under this Agreement are subject to all applicable federal and state laws, rules and regulations, including those related to disclosure of financial and other information to the Participant and to approvals by any government or regulatory agency as may be required. The Company shall not be required to

 

4

issue or deliver any certificates for Shares prior to (A) the listing of such shares on any stock exchange on which the Shares may then be listed and (B) the completion of any registration or qualification of such shares under any federal or state law, or any rule or regulation of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable.

3.9 Change of Control . Upon the occurrence of a Change of Control, unless otherwise specifically prohibited under applicable laws or by the applicable rules and regulations of any governing governmental agencies or national securities exchanges, any unvested Restricted Share Units shall become immediately vested and shall be paid in Shares within thirty (30) days after such Change of Control; provided , that such payment shall not be accelerated to the extent such acceleration would cause this Agreement to fail to comply with, or give rise to any tax, interest or penalties under, Section 409A; provided , further, that any fractional Shares shall be paid in cash.

4. Investment Representation . The Participant must, within five (5) days of demand by the Company furnish the Company an agreement satisfactory to the Company in which the Participant represents that the Shares acquired upon vesting are being acquired for investment. The Company will have the right, at its election, to place legends on the certificates representing the Shares so being issued with respect to limitations on transferability imposed by federal and/or state laws, and the Company will have the right to issue “stop transfer” instructions to its transfer agent.

5. Participant Bound by Plan . The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof as amended from time to time.

6. [Reserved.]

7. Notices . Any notice hereunder to the Company must be addressed to: MGM Growth Properties LLC, c/o MGM Resorts, 3600 Las Vegas Boulevard South, Las Vegas, Nevada 89109, Attention: Designated legal counsel for purposes of administration of the MGM Growth Properties LLC 2016 Omnibus Incentive Plan, and any notice hereunder to the Participant must be addressed to the Participant at the Participant’s last address on the records of the Company, subject to the right of either party to designate at any time hereafter in writing some other address. Any notice shall be deemed to have been duly given on personal delivery or three (3) days after being sent in a properly sealed envelope, addressed as set forth above, and deposited (with first class postage prepaid) in the United States mail.

8. Entire Agreement . This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any agreement between the Participant and the Company or any of its Affiliates whether previously entered into, currently effective or entered into in the future that provides terms and conditions for equity awards) which relate to the subject matter hereof.

 

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9. Waiver . No waiver of any breach or condition of this Agreement shall be deemed a waiver of any other or subsequent breach or condition whether of like or different nature.

10. Participant Undertaking . The Participant agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or effect one or more of the obligations or restrictions imposed on either the Participant or the Restricted Share Units pursuant to this Agreement.

11. Successors and Assigns . The provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the Participant’s estate, whether or not any such person shall have become a party to this Agreement and agreed in writing to be joined herein and be bound by the terms hereof.

12. Governing Law . The parties hereto agree that the validity, construction and interpretation of this Agreement shall be governed by the laws of the state of Nevada.

13. Arbitration . Except as otherwise provided in Exhibit A to this Agreement (which constitutes a material provision of this Agreement), disputes relating to this Agreement shall be resolved by arbitration pursuant to Exhibit A hereto.

14. Amendment . This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto; provided that the Company may alter, modify or amend this Agreement unilaterally if such change is not materially adverse to the Participant or to cause this Agreement to comply with applicable law or avoid the imposition of any tax, interest or penalty under Section 409A.

15. Severability . The provisions of this Agreement are severable and if any portion of this Agreement is declared contrary to any law, regulation or is otherwise invalid, in whole or in part, the remaining provisions of this Agreement shall nevertheless be binding and enforceable.

16. Execution . Each party agrees that an electronic, facsimile or digital signature or an online acceptance or acknowledgment will be accorded the full legal force and effect of a handwritten signature under Nevada law. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

17. Variation of Pronouns . All pronouns and any variations thereof contained herein shall be deemed to refer to masculine, feminine, neuter, singular or plural, as the identity of the person or persons may require.

18. Tax Treatment; Section 409A . The Participant shall be responsible for all taxes with respect to the Restricted Share Units. The terms of this Award shall be subject to Section 20.12 of the Plan (relating to Section 409A), which shall be incorporated herein by reference.

[The remainder of this page is left blank intentionally.]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Restricted Share Units Agreement as of the date first written above.

 

MGM GROWTH PROPERTIES LLC
By:  

 

Name:  
Title:  
PARTICIPANT
By:  

 

Name:  

 

[Signature Page to Restricted Share Units Agreement]

EXHIBIT A

ARBITRATION

This Exhibit A sets forth the methods for resolving disputes should any arise under the Agreement, and accordingly, this Exhibit A shall be considered a part of the Agreement.

 

1. Except for a claim by either Participant or the Company for injunctive relief where such would be otherwise authorized by law, any controversy or claim arising out of or relating to the Agreement or the breach hereof including without limitation any claim involving the interpretation or application of the Agreement or the Plan, shall be submitted to binding arbitration in accordance with the employment arbitration rules then in effect of the Judicial Arbitration and Mediation Service (“ JAMS ”), to the extent not inconsistent with this paragraph. This Exhibit A covers any claim Participant might have against any officer, director, employee, or agent of the Company, or any of the Company’s subsidiaries, divisions, and Affiliates, and all successors and assigns of any of them. The promises by the Company and Participant to arbitrate differences, rather than litigate them before courts or other bodies, provide consideration for each other, in addition to other consideration provided under the Agreement.

 

2. Claims Subject to Arbitration : This Exhibit A contemplates mandatory arbitration to the fullest extent permitted by law. Only claims that are justiciable under applicable state or federal law are covered by this Exhibit A. Such claims include any and all alleged violations of any state or federal law whether common law, statutory, arising under regulation or ordinance, or any other law, brought by any current or former directors of the Company.

 

3. Non-Waiver of Substantive Rights : This Exhibit A does not waive any rights or remedies available under applicable statutes or common law. However, it does waive Participant’s right to pursue those rights and remedies in a judicial forum. By signing the Agreement and the acknowledgment at the end of this Exhibit A, the undersigned Participant voluntarily agrees to arbitrate his or her claims covered by this Exhibit A.

 

4. Time Limit to Pursue Arbitration; Initiation : To ensure timely resolution of disputes, Participant and the Company must initiate arbitration within the statute of limitations (deadline for filing) provided for by applicable law pertaining to the claim. The failure to initiate arbitration within this time limit will bar any such claim. The parties understand that the Company and Participant are waiving any longer statutes of limitations that would otherwise apply, and any aggrieved party is encouraged to give written notice of any claim as soon as possible after the event(s) in dispute so that arbitration of any differences may take place promptly. The parties agree that the aggrieved party must, within the time frame provided by this Exhibit A, give written notice of a claim pursuant to Section 7 of the Agreement. In the event such notice is to be provided to the Company, the Participant shall provide a copy of such notice of a claim to the Company’s designated legal counsel for purposes of arbitration. Written notice shall identify and describe the nature of the claim, the supporting facts and the relief or remedy sought.

 

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5. Selecting an Arbitrator : This Exhibit A mandates Arbitration under the then current rules of the Judicial Arbitration and Mediation Service (JAMS) regarding employment disputes. The arbitrator shall be either a retired judge or an attorney experienced in employment law and licensed to practice in the state in which arbitration is convened. The parties shall select one arbitrator from among a list of three qualified neutral arbitrators provided by JAMS. If the parties are unable to agree on the arbitrator, each party shall strike one name and the remaining named arbitrator shall be selected.

 

6. Representation/Arbitration Rights and Procedures :

 

  a. Participant may be represented by an attorney of his/her choice at his/her own expense.

 

  b. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of Nevada (without regard to its choice of law provisions) and/or federal law when applicable. In all cases, this Exhibit A shall provide for the broadest level of arbitration of claims between the Company and Participant under Nevada or applicable federal law. The arbitrator is without jurisdiction to apply any different substantive law or law of remedies.

 

  c. The arbitrator shall have no authority to award non-economic damages or punitive damages except where such relief is specifically authorized by an applicable state or federal statute or common law. In such a situation, the arbitrator shall specify in the award the specific statute or other basis under which such relief is granted.

 

  d. The applicable law with respect to privilege, including attorney-client privilege, work product, and offers to compromise must be followed.

 

  e. The parties shall have the right to conduct reasonable discovery, including written and oral (deposition) discovery and to subpoena and/or request copies of records, documents and other relevant discoverable information consistent with the procedural rules of JAMS. The arbitrator shall decide disputes regarding the scope of discovery and shall have authority to regulate the conduct of any hearing and/or trial proceeding. The arbitrator shall have the right to entertain a motion to dismiss and/or motion for summary judgment.

 

  f. The parties shall exchange witness lists at least 30 days prior to the trial/hearing procedure. The arbitrator shall have subpoena power so that either Participant or the Company may summon witnesses. The arbitrator shall use the Federal Rules of Evidence. Both parties have the right to file a post hearing brief. Any party, at its own expense, may arrange for and pay the cost of a court reporter to provide a stenographic record of the proceedings.

 

  g. Any arbitration hearing or proceeding shall take place in private, not open to the public, in Las Vegas, Nevada.

 

7.

Arbitrator’s Award : The arbitrator shall issue a written decision containing the specific issues raised by the parties, the specific findings of fact, and the specific conclusions of

 

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  law. The award shall be rendered promptly, typically within 30 days after conclusion of the arbitration hearing, or the submission of post-hearing briefs if requested. The arbitrator may not award any relief or remedy in excess of what a court could grant under applicable law. The arbitrator’s decision is final and binding on both parties. Judgment upon an award rendered by the arbitrator may be entered in any court having competent jurisdiction.

 

  a. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Exhibit A and to enforce an arbitration award.

 

  b. In the event of any administrative or judicial action by any agency or third party to adjudicate a claim on behalf of Participant which is subject to arbitration under this Exhibit A, Participant hereby waives the right to participate in any monetary or other recovery obtained by such agency or third party in any such action, and Participant’s sole remedy with respect to any such claim shall be any award decreed by an arbitrator pursuant to the provisions of this Exhibit A.

 

8. Fees and Expenses : The Company shall be responsible for paying any filing fee and the fees and costs of the arbitrator; provided, however, that if Participant is the party initiating the claim, Participant will contribute an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which Participant is (or was last) providing services to the Company. Participant and the Company shall each pay for their own expenses, attorney’s fees (a party’s responsibility for his/her/its own attorney’s fees is only limited by any applicable statute specifically providing that attorney’s fees may be awarded as a remedy), and costs and fees regarding witness, photocopying and other preparation expenses. If any party prevails on a statutory claim that affords the prevailing party attorney’s fees and costs, or if there is a written agreement providing for attorney’s fees and/or costs, the arbitrator may award reasonable attorney’s fees and/or costs to the prevailing party, applying the same standards a court would apply under the law applicable to the claim(s).

 

9. The arbitration provisions of this Exhibit A shall survive the cessation of Participant’s service with the Company and its Affiliates and the expiration of the Agreement. These arbitration provisions can only be modified or revoked in a writing signed by both parties and which expressly states an intent to modify or revoke the provisions of this Exhibit A.

 

10. The arbitration provisions of this Exhibit A do not alter or affect the termination provisions of this Agreement.

 

11. Capitalized terms not defined in this Exhibit A shall have the same definition as in the Agreement to which this is Exhibit A.

 

12. If any provision of this Exhibit A is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of Exhibit A. All other provisions shall remain in full force and effect.

 

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ACKNOWLEDGMENT

BOTH PARTIES ACKNOWLEDGE THAT: THEY HAVE CAREFULLY READ THIS EXHIBIT A IN ITS ENTIRETY, THEY UNDERSTAND ITS TERMS, EXHIBIT A CONSTITUTES A MATERIAL TERM AND CONDITION OF THE RESTRICTED SHARE UNITS AGREEMENT BETWEEN THE PARTIES TO WHICH IT IS EXHIBIT A, AND THEY AGREE TO ABIDE BY ITS TERMS.

The parties also specifically acknowledge that by agreeing to the terms of this Exhibit A, they are waiving the right to pursue claims covered by this Exhibit A in a judicial forum and instead agree to arbitrate all such claims before an arbitrator without a court or jury. It is specifically understood that this Exhibit A does not waive any rights or remedies which are available under applicable state and federal statutes or common law. Both parties enter into this Exhibit A voluntarily and not in reliance on any promises or representation by the other party other than those contained in the Agreement or in this Exhibit A.

Participant further acknowledges that Participant has been given the opportunity to discuss this Exhibit A with Participant’s private legal counsel and that Participant has availed himself/herself of that opportunity to the extent Participant wishes to do so.

[The remainder of this page is left blank intentionally.]

 

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Exhibit 10.14

MGM GROWTH PROPERTIES LLC

FORM OF RESTRICTED SHARE UNITS AGREEMENT

 

 

No. of Restricted Share Units: [●]

This Restricted Share Units Agreement (including its Exhibit, the “ Agreement ”) is made by and between MGM Growth Properties LLC, a Delaware limited liability company (the “ Company ”), and [●] (the “ Participant ”) with an effective date of [●].

RECITALS

A. The Board of Directors of the Company (the “ Board ”) has adopted the MGM Growth Properties LLC 2016 Omnibus Incentive Plan (the “ Plan ”), which provides for the granting of Restricted Share Units (as that term is defined in Section 1 below) to selected service providers. Capitalized terms used and not defined in this Agreement shall have the same meanings as in the Plan.

B. The Board believes that the grant of Restricted Share Units will stimulate the interest of selected employees in, and strengthen their desire to remain with, the Company or any of its Affiliates (as hereinafter defined).

C. In consideration of the Participant’s services to the Operating Partnership, the Board has authorized the grant of Restricted Share Units to the Participant pursuant to the terms of the Plan and this Agreement.

D. The Board and the Participant intend that the Plan and this Agreement constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any employment agreement between the Participant and the Company or any of its Affiliates whether previously entered into, currently effective or entered into in the future) which relate to the subject matter hereof.

Accordingly, in consideration of the mutual covenants contained herein, the parties agree as follows:

1. Definitions .

1.1 “ Change of Control ” means, with respect to (x) the Company or (y) provided that it is an Affiliate of the Company at the relevant time, MGM (each of (x) and (y), a “ Referenced Entity ”), the first to occur of:

(A) the date that a reorganization, merger, consolidation, recapitalization, or similar transaction (other than a spinoff, exchange offer or similar transaction to or with the applicable Referenced Entity’s public shareholders) is consummated, unless: (i) at least 50% of the outstanding voting securities of the surviving or resulting entity (including,

without limitation, an entity which as a result of such transaction owns the Company either directly or through one or more subsidiaries) (“Resulting Entity”) are beneficially owned, directly or indirectly, by the persons who were the beneficial owners of the outstanding voting securities of the Corporation immediately prior to such transaction in substantially the same proportions as their beneficial ownership, immediately prior to such transaction, of the outstanding voting securities of the Corporation and (ii) immediately following such transaction no person or persons acting as a group beneficially owns capital stock of the Resulting Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Resulting Entity;

(B) the date that a majority of members of the Referenced Entity’s Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Referenced Entity’s Board before the date of the appointment or election; provided that no individual shall be considered to be so endorsed if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Referenced Entity’s Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest;

(C) the date that any one person, or persons acting as a group, acquires (or has or have acquired as of the date of the most recent acquisition by such person or persons) beneficial ownership of stock of the Referenced Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Referenced Entity; or

(D) the date that any one person acquires, or persons acting as a group acquire (or has or have acquired as of the date of the most recent acquisition by such person or persons), assets from the Referenced Entity that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value of all of the assets of the Referenced Entity immediately before such acquisition or acquisitions.

1.2 “ Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time. For purposes of the Plan and this Agreement, references to sections of the Code shall be deemed to include references to any applicable regulations thereunder and any successor or similar provision.

1.3 “ Current Employment Agreement ” means the Participant’s employment agreement with the Company or any of its Affiliates in effect as of the applicable date of determination.

1.4 “ Disability ” means that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement

 

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benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Employer.

1.5 “ Employer ” means the Company and its Affiliates.

1.6 “ Employer’s Good Cause ” shall have the meaning given such term or a comparable term in the Current Employment Agreement; provided , that if there is no Current Employment Agreement or if such agreement does not include such term or a comparable term, “ Employer’s Good Cause ” means:

A. Participant’s failure to abide by the Employer’s policies and procedures, misconduct, insubordination, inattention to the Employer’s business, failure to perform the duties required of the Participant up to the standards established by the Employer’s senior management, or material breach of the Current Employment Agreement, which failure or breach is not cured by the Participant within ten (10) days after written notice thereof from the Employer specifying the facts and circumstances of the alleged failure or breach, provided , however , that such notice and opportunity to cure shall not be required if, in the good faith judgment of the Board, such breach is not capable of being cured within ten (10) days;

B. Participant’s failure or inability to apply for and obtain any license, qualification, clearance or other similar approval which the Employer or any regulatory authority which has jurisdiction over the Employer requests or requires that the Participant obtain;

C. the Employer is directed by any governmental authority in Nevada, Michigan, Mississippi, Illinois, Macau S.A.R., or any other jurisdiction in which the Employer is engaged in a gaming business or where the Employer has applied to (or during the term of the Participant’s employment under the Current Employment Agreement, may apply to) engage in a gaming business to cease business with the Participant;

D. the Employer determines, in its reasonable judgment, that the Participant was, is or might be involved in, or is about to be involved in, any activity, relationship(s) or circumstance which could or does jeopardize the Employer’s business, reputation or licenses to engage in the gaming business; or

E. any of the Employer’s gaming business licenses are threatened to be, or are, denied, curtailed, suspended or revoked as a result of the Participant’s employment by the Employer or as a result of the Participant’s actions.

1.7 “ Fair Market Value ” or “ FMV ” shall have the meaning set forth for such term in the Plan.

1.8 “ Participant’s Good Cause ” shall have the meaning given such term or a comparable term in the Current Employment Agreement; provided , that if there is no Current Employment Agreement or if such agreement does not include such term or a comparable term, “ Participant’s Good Cause ” means:

A. The failure of the Employer to pay the Participant any compensation when due; or

 

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B. A material reduction in the scope of duties or responsibilities of the Participant or any reduction in the Participant’s salary.

Within ten (10) days following the first occurrence of a breach constituting Participant’s Good Cause, the Participant shall give the Employer thirty (30) days’ advance written notice specifying the facts and circumstances of the alleged breach. During such thirty (30) day period, the Employer may either cure the breach (in which case such notice will be considered withdrawn) or declare that the Employer disputes that Participant’s Good Cause exists, in which case Participant’s Good Cause shall not exist until the dispute is resolved in accordance with the methods for resolving disputes specified in Exhibit A hereto.

1.9 “ Restricted Share Units ” means an award of Restricted Share Units granted to a Participant pursuant to Article 8 of the Plan.

1.10 “ Section 409A ” means Code Section 409A, the regulations thereunder promulgated by the United States Department of Treasury and other guidance issued thereunder.

1.11 “ Share ” means a share of Class A common shares representing limited liability company interests of the Company.

2. Grant to Participant . The Company hereby grants to the Participant, subject to the terms and conditions of the Plan and this Agreement, and contingent upon the closing of the initial public offering of Shares as contemplated by that certain Form S-11 filed on March 22, 2016, an award of [●] Restricted Share Units (the “ Award ”). Except as otherwise set forth in the Plan or this Agreement, (i) each Restricted Share Unit represents the right to receive one (1) Share upon vesting of such Restricted Share Units, (ii) unless and until the Restricted Share Units have vested in accordance with the terms of this Agreement, the Participant shall not have any right to delivery of the Shares underlying such Restricted Share Units or any other consideration in respect thereof and (iii) each Restricted Share Unit that vests, and any Dividend Equivalent Rights earned under Section 3.4(B), shall be paid to the Participant in Shares, less applicable withholding, within thirty (30) days following the date that the Restricted Share Unit vests or the date(s) set forth in Sections 3.1 and 3.2, as applicable; provided , that any fractional Shares shall be paid in cash.

3. Terms and Conditions .

3.1 Vesting Schedule . Subject to Section 3.2, the Restricted Share Units shall vest as set forth in (i) through (iv) below, subject to the Participant’s continued employment with the Company or any Affiliate on each of the dates specified in (i) through (iv) below:

(i) The first installment shall consist of twenty-five percent (25%) of the Shares subject to the Restricted Share Units and shall vest on [●] (the “ Initial Vesting Date ”);

(ii) The second installment shall consist of twenty-five percent (25%) of the Shares subject to the Restricted Share Units and shall vest on the first anniversary of the Initial Vesting Date;

 

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(iii) The third installment shall consist of twenty-five percent (25%) of the Shares subject to the Restricted Share Units and shall vest on the second anniversary of the Initial Vesting Date; and

(iv) The fourth installment shall consist of twenty-five percent (25%) of the Shares subject to the Restricted Share Units and shall vest on the third anniversary of the Initial Vesting Date;

provided , that any Restricted Share Units which vest under the schedule set forth in this Section 3.1, and any Dividend Equivalent Rights earned under Section 3.4(B), shall be paid to the Participant in Shares within thirty (30) days following the date that the applicable installment vests.

3.2 Vesting at Termination . Upon termination of employment with the Employer for any reason the unvested portion of the Restricted Share Units shall be forfeited without any consideration; provided , however , that, upon termination of employment by the Employer without Employer’s Good Cause, by the Participant with Participant’s Good Cause, or due to the Participant’s death or Disability, the Restricted Share Units that would have become vested (but for such termination) under the schedule determined in Section 3.1 herein during the twelve (12) months from the date of termination of employment, and any Dividend Equivalent Rights earned under Section 3.4(B), shall be paid on the same schedule determined in Section 3.1 herein; provided , however , that such continued vesting shall immediately cease and unvested Restricted Share Units shall be forfeited in the event the Participant breaches any post-termination covenant with the Company or its Affiliates in any employment agreement or otherwise (after taking into account any applicable cure period).

3.3 Board Discretion . The Board, in its discretion, may accelerate the vesting of the balance, or some lesser portion, of the Participant’s unvested Restricted Share Units at any time, subject to the terms of the Plan and this Agreement. If so accelerated, the Restricted Share Units will be considered as having vested as of the date specified by the Board or an applicable written agreement but the Board will have no right to accelerate any payment under this Agreement if such acceleration would cause this Agreement to fail to comply with Section 409A.

3.4 No Rights as a Shareholder; Dividend Equivalent Rights .

A. Participant will have no rights as a shareholder with respect to any Shares subject to Restricted Share Units until the Restricted Share Units have vested and Shares relating thereto have been issued and recorded on the records of the Company or its transfer agent or registrars.

B. In accordance with Article 13 of the Plan, this Award is granted together with Dividend Equivalent Rights. Whenever a dividend is paid with respect to the Company’s Shares, a corresponding Dividend Equivalent Right shall be credited with respect to each outstanding Restricted Share Unit then held by the Participant in a number of additional full and fractional Restricted Share Units calculated based on the Fair Market Value of the Shares at the time such dividend is paid. Any such additional Restricted Share Units shall be subject to the

 

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same vesting, forfeiture, settlement and other terms and conditions as the underlying Restricted Share Units with respect to which they were credited.

3.5 Limits on Transferability . The Restricted Share Units granted under this Agreement may be transferred solely to a trust in which the Participant or the Participant’s spouse control the management of the assets. With respect to Restricted Share Units, if any, that have been transferred to a trust, references in this Agreement to vesting related to such Restricted Share Units shall be deemed to include such trust. Any transfer of Restricted Share Units shall be subject to the terms and conditions of the Plan and this Agreement and the transferee shall be subject to the same terms and conditions as if it were the Participant. No interest of the Participant under this Agreement shall be subject to attachment, execution, garnishment, sequestration, the laws of bankruptcy or any other legal or equitable process.

3.6 Adjustments . The Award shall be subject to adjustment by the Board in accordance with Section 4.4 of the Plan in the case of certain corporate reorganization events.

3.7 No Right to Continued Performance of Services . The grant of the Restricted Share Units does not confer upon the Participant any right to continue to be employed by the Company or any of its Affiliates nor may it interfere in any way with the right of the Company or any of its Affiliates for which the Participant performs services to terminate the Participant’s employment at any time.

3.8 Compliance With Law and Regulations . The grant and vesting of Restricted Share Units and the obligation of the Company to issue Shares under this Agreement are subject to all applicable federal and state laws, rules and regulations, including those related to disclosure of financial and other information to the Participant and to approvals by any government or regulatory agency as may be required. The Company shall not be required to issue or deliver any certificates for Shares prior to (A) the listing of such shares on any stock exchange on which the Shares may then be listed and (B) the completion of any registration or qualification of such shares under any federal or state law, or any rule or regulation of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable.

3.9 Change of Control . Upon the occurrence of a Change of Control, the Board is authorized (but not obligated) to make adjustments in the terms and conditions of the Award, including without limitation the following (or any combination thereof): (a) continuation or assumption of the Award under the Plan by the Company (if it is the surviving company or corporation) or by the surviving company or corporation or its parent; (b) substitution by the surviving company or corporation or its parent of awards with substantially the same terms for the Award (with appropriate adjustments to the type of consideration payable upon settlement of the Award); (c) accelerated exercisability, vesting and/or payment under the Award immediately prior to or upon the occurrence of such event or upon a termination of employment or other service following such event; and (d) if all or substantially all of the Company’s outstanding Shares transferred in exchange for cash consideration in connection with such Change of Control, cancellation of all or any portion of the Award for fair value (in the form of cash, shares, other property or any combination thereof) as determined in the sole discretion of the Board.

 

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4. Investment Representation . The Participant must, within five (5) days of demand by the Company furnish the Company an agreement satisfactory to the Company in which the Participant represents that the Shares acquired upon vesting are being acquired for investment. The Company will have the right, at its election, to place legends on the certificates representing the Shares so being issued with respect to limitations on transferability imposed by federal and/or state laws, and the Company will have the right to issue “stop transfer” instructions to its transfer agent.

5. Participant Bound by Plan . The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof as amended from time to time.

6. Withholding . The Company or any of its Affiliates shall have the right, and is hereby authorized, to withhold any applicable withholding taxes in respect of the Restricted Share Units awarded by this Agreement, their grant, vesting or otherwise, and to take such other action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such withholding taxes, which may include, without limitation, reducing the number of shares otherwise distributable to the Participant by the number of Shares whose Fair Market Value is equal to the amount of tax required to be withheld by the Company or any of its Affiliates as a result of the vesting or settlement or otherwise of the Restricted Share Units.

7. Notices . Any notice hereunder to the Company must be addressed to: MGM Growth Properties LLC, c/o MGM Resorts, 3600 Las Vegas Boulevard South, Las Vegas, Nevada 89109, Attention: Designated legal counsel for purposes of administration of the MGM Growth Properties LLC 2016 Omnibus Incentive Plan, and any notice hereunder to the Participant must be addressed to the Participant at the Participant’s last address on the records of the Company, subject to the right of either party to designate at any time hereafter in writing some other address. Any notice shall be deemed to have been duly given on personal delivery or three (3) days after being sent in a properly sealed envelope, addressed as set forth above, and deposited (with first class postage prepaid) in the United States mail.

8. Entire Agreement . This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any employment agreement between the Participant and the Company or any of its Affiliates whether previously entered into, currently effective or entered into in the future that includes terms and conditions regarding equity awards) which relate to the subject matter hereof.

9. Waiver . No waiver of any breach or condition of this Agreement shall be deemed a waiver of any other or subsequent breach or condition whether of like or different nature.

10. Participant Undertaking . The Participant agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or effect one or more of the obligations or restrictions imposed on either the Participant or the Restricted Share Units pursuant to this Agreement.

 

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11. Successors and Assigns . The provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the Participant’s estate, whether or not any such person shall have become a party to this Agreement and agreed in writing to be joined herein and be bound by the terms hereof.

12. Governing Law . The parties hereto agree that the validity, construction and interpretation of this Agreement shall be governed by the laws of the state of Nevada.

13. Arbitration . Except as otherwise provided in Exhibit A to this Agreement (which constitutes a material provision of this Agreement), disputes relating to this Agreement shall be resolved by arbitration pursuant to Exhibit A hereto.

14. Clawback Policy . By accepting this award the Participant hereby agrees that this award and any other compensation paid or payable to the Participant is subject to Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement (or any successor policy) as in effect from time to time, and that this award shall be considered incentive compensation for purposes of such policy. In addition, the Participant agrees that such policy may be amended from time to time by the Board in a manner designed to comply with applicable law and/or stock exchange listing requirements. The Participant also hereby agrees that the award granted hereunder and any other compensation payable to the Participant shall be subject to recovery (in whole or in part) by the Company to the minimum extent required by applicable law and/or stock exchange listing requirements.

15. Amendment . This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto; provided that the Company may alter, modify or amend this Agreement unilaterally if such change is not materially adverse to the Participant or to cause this Agreement to comply with applicable law or avoid the imposition of any tax, interest or penalty under Section 409A.

16. Severability . The provisions of this Agreement are severable and if any portion of this Agreement is declared contrary to any law, regulation or is otherwise invalid, in whole or in part, the remaining provisions of this Agreement shall nevertheless be binding and enforceable.

17. Execution . Each party agrees that an electronic, facsimile or digital signature or an online acceptance or acknowledgment will be accorded the full legal force and effect of a handwritten signature under Nevada law. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

18. Variation of Pronouns . All pronouns and any variations thereof contained herein shall be deemed to refer to masculine, feminine, neuter, singular or plural, as the identity of the person or persons may require.

19. Tax Treatment; Section 409A . The Participant shall be responsible for all taxes with respect to the Restricted Share Units. The terms of this Award shall be subject to Section 20.12 of the Plan (relating to Section 409A), which shall be incorporated herein by reference.

 

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[The remainder of this page is left blank intentionally.]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Restricted Share Units Agreement as of the date first written above.

 

MGM GROWTH PROPERTIES LLC
By:  

 

Name:  
Title:  
PARTICIPANT
By:  

 

Name:  

 

[Signature Page to Restricted Share Units Agreement]

EXHIBIT A

ARBITRATION

This Exhibit A sets forth the methods for resolving disputes should any arise under the Agreement, and accordingly, this Exhibit A shall be considered a part of the Agreement.

 

1. Except for a claim by either Participant or the Company for injunctive relief where such would be otherwise authorized by law, any controversy or claim arising out of or relating to the Agreement or the breach hereof including without limitation any claim involving the interpretation or application of the Agreement or the Plan, shall be submitted to binding arbitration in accordance with the employment arbitration rules then in effect of the Judicial Arbitration and Mediation Service (“ JAMS ”), to the extent not inconsistent with this paragraph. This Exhibit A covers any claim Participant might have against any officer, director, employee, or agent of the Company, or any of the Company’s subsidiaries, divisions, and Affiliates, and all successors and assigns of any of them. The promises by the Company and Participant to arbitrate differences, rather than litigate them before courts or other bodies, provide consideration for each other, in addition to other consideration provided under the Agreement.

 

2. Claims Subject to Arbitration : This Exhibit A contemplates mandatory arbitration to the fullest extent permitted by law. Only claims that are justiciable under applicable state or federal law are covered by this Exhibit A. Such claims include any and all alleged violations of any state or federal law whether common law, statutory, arising under regulation or ordinance, or any other law, brought by any current or former employees of the Company and its Affiliates.

 

3. Non-Waiver of Substantive Rights : This Exhibit A does not waive any rights or remedies available under applicable statutes or common law. However, it does waive Participant’s right to pursue those rights and remedies in a judicial forum. By signing the Agreement and the acknowledgment at the end of this Exhibit A, the undersigned Participant voluntarily agrees to arbitrate his or her claims covered by this Exhibit A.

 

4. Time Limit to Pursue Arbitration; Initiation : To ensure timely resolution of disputes, Participant and the Company must initiate arbitration within the statute of limitations (deadline for filing) provided for by applicable law pertaining to the claim. The failure to initiate arbitration within this time limit will bar any such claim. The parties understand that the Company and Participant are waiving any longer statutes of limitations that would otherwise apply, and any aggrieved party is encouraged to give written notice of any claim as soon as possible after the event(s) in dispute so that arbitration of any differences may take place promptly. The parties agree that the aggrieved party must, within the time frame provided by this Exhibit A, give written notice of a claim pursuant to Section 7 of the Agreement. In the event such notice is to be provided to the Company, the Participant shall provide a copy of such notice of a claim to the Company’s designated legal counsel for purposes of arbitration. Written notice shall identify and describe the nature of the claim, the supporting facts and the relief or remedy sought.

 

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5. Selecting an Arbitrator : This Exhibit A mandates Arbitration under the then current rules of the Judicial Arbitration and Mediation Service (JAMS) regarding employment disputes. The arbitrator shall be either a retired judge or an attorney experienced in employment law and licensed to practice in the state in which arbitration is convened. The parties shall select one arbitrator from among a list of three qualified neutral arbitrators provided by JAMS. If the parties are unable to agree on the arbitrator, each party shall strike one name and the remaining named arbitrator shall be selected.

 

6. Representation/Arbitration Rights and Procedures :

 

  a. Participant may be represented by an attorney of his/her choice at his/her own expense.

 

  b. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of Nevada (without regard to its choice of law provisions) and/or federal law when applicable. In all cases, this Exhibit A shall provide for the broadest level of arbitration of claims between the Company and Participant under Nevada or applicable federal law. The arbitrator is without jurisdiction to apply any different substantive law or law of remedies.

 

  c. The arbitrator shall have no authority to award non-economic damages or punitive damages except where such relief is specifically authorized by an applicable state or federal statute or common law. In such a situation, the arbitrator shall specify in the award the specific statute or other basis under which such relief is granted.

 

  d. The applicable law with respect to privilege, including attorney-client privilege, work product, and offers to compromise must be followed.

 

  e. The parties shall have the right to conduct reasonable discovery, including written and oral (deposition) discovery and to subpoena and/or request copies of records, documents and other relevant discoverable information consistent with the procedural rules of JAMS. The arbitrator shall decide disputes regarding the scope of discovery and shall have authority to regulate the conduct of any hearing and/or trial proceeding. The arbitrator shall have the right to entertain a motion to dismiss and/or motion for summary judgment.

 

  f. The parties shall exchange witness lists at least 30 days prior to the trial/hearing procedure. The arbitrator shall have subpoena power so that either Participant or the Company may summon witnesses. The arbitrator shall use the Federal Rules of Evidence. Both parties have the right to file a post hearing brief. Any party, at its own expense, may arrange for and pay the cost of a court reporter to provide a stenographic record of the proceedings.

 

  g. Any arbitration hearing or proceeding shall take place in private, not open to the public, in Las Vegas, Nevada.

 

7.

Arbitrator’s Award : The arbitrator shall issue a written decision containing the specific issues raised by the parties, the specific findings of fact, and the specific conclusions of

 

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  law. The award shall be rendered promptly, typically within 30 days after conclusion of the arbitration hearing, or the submission of post-hearing briefs if requested. The arbitrator may not award any relief or remedy in excess of what a court could grant under applicable law. The arbitrator’s decision is final and binding on both parties. Judgment upon an award rendered by the arbitrator may be entered in any court having competent jurisdiction.

 

  a. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Exhibit A and to enforce an arbitration award.

 

  b. In the event of any administrative or judicial action by any agency or third party to adjudicate a claim on behalf of Participant which is subject to arbitration under this Exhibit A, Participant hereby waives the right to participate in any monetary or other recovery obtained by such agency or third party in any such action, and Participant’s sole remedy with respect to any such claim shall be any award decreed by an arbitrator pursuant to the provisions of this Exhibit A.

 

8. Fees and Expenses : The Company shall be responsible for paying any filing fee and the fees and costs of the arbitrator; provided, however, that if Participant is the party initiating the claim, Participant will contribute an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which Participant is (or was last) employed by the Company. Participant and the Company shall each pay for their own expenses, attorney’s fees (a party’s responsibility for his/her/its own attorney’s fees is only limited by any applicable statute specifically providing that attorney’s fees may be awarded as a remedy), and costs and fees regarding witness, photocopying and other preparation expenses. If any party prevails on a statutory claim that affords the prevailing party attorney’s fees and costs, or if there is a written agreement providing for attorney’s fees and/or costs, the arbitrator may award reasonable attorney’s fees and/or costs to the prevailing party, applying the same standards a court would apply under the law applicable to the claim(s).

 

9. The arbitration provisions of this Exhibit A shall survive the termination of Participant’s employment with the Company and its Affiliates and the expiration of the Agreement. These arbitration provisions can only be modified or revoked in a writing signed by both parties and which expressly states an intent to modify or revoke the provisions of this Exhibit A.

 

10. The arbitration provisions of this Exhibit A do not alter or affect the termination provisions of this Agreement.

 

11. Capitalized terms not defined in this Exhibit A shall have the same definition as in the Agreement to which this is Exhibit A.

 

12. If any provision of this Exhibit A is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of Exhibit A. All other provisions shall remain in full force and effect.

 

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ACKNOWLEDGMENT

BOTH PARTIES ACKNOWLEDGE THAT: THEY HAVE CAREFULLY READ THIS EXHIBIT A IN ITS ENTIRETY, THEY UNDERSTAND ITS TERMS, EXHIBIT A CONSTITUTES A MATERIAL TERM AND CONDITION OF THE RESTRICTED SHARE UNITS AGREEMENT BETWEEN THE PARTIES TO WHICH IT IS EXHIBIT A, AND THEY AGREE TO ABIDE BY ITS TERMS.

The parties also specifically acknowledge that by agreeing to the terms of this Exhibit A, they are waiving the right to pursue claims covered by this Exhibit A in a judicial forum and instead agree to arbitrate all such claims before an arbitrator without a court or jury. It is specifically understood that this Exhibit A does not waive any rights or remedies which are available under applicable state and federal statutes or common law. Both parties enter into this Exhibit A voluntarily and not in reliance on any promises or representation by the other party other than those contained in the Agreement or in this Exhibit A.

Participant further acknowledges that Participant has been given the opportunity to discuss this Exhibit A with Participant’s private legal counsel and that Participant has availed himself/herself of that opportunity to the extent Participant wishes to do so.

[The remainder of this page is left blank intentionally.]

 

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Exhibit 10.15

FORM – MGM DIRECTORS

MGM GROWTH PROPERTIES LLC

FORM OF RESTRICTED SHARE UNITS AGREEMENT

(MGM DIRECTORS)

 

 

No. of Restricted Share Units: [●]

This Restricted Share Units Agreement (including its Exhibit, the “ Agreement ”) is made by and between MGM Growth Properties LLC, a Delaware limited liability company (the “ Company ”), and [●] (the “ Participant ”) with an effective date of [●].

RECITALS

A. The Board of Directors of the Company (the “ Board ”) has adopted the MGM Growth Properties LLC 2016 Omnibus Incentive Plan (the “ Plan ”), which provides for the granting of Restricted Share Units (as that term is defined in Section 1 below) to selected service providers. Capitalized terms used and not defined in this Agreement shall have the same meanings as in the Plan.

B. The Board believes that the grant of Restricted Share Units will stimulate the interest of selected individuals in, and strengthen their desire to remain with, the Company or any of its Affiliates (as hereinafter defined).

C. The Board has determined that the Participant has provided, or is expected to provide, services to the Company, and in consideration thereof, the Board has authorized the grant of Restricted Share Units to the Participant pursuant to the terms of the Plan and this Agreement.

D. The Board and the Participant intend that the Plan and this Agreement constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any agreement between the Participant and the Company or any of its Affiliates, whether previously entered into, currently effective or entered into in the future) which relate to the subject matter hereof.

Accordingly, in consideration of the mutual covenants contained herein, the parties agree as follows:

1. Definitions .

1.1 “ Change of Control ” means, with respect to (x) the Company or (y) provided that it is an Affiliate of the Company at the relevant time, MGM (each of (x) and (y), a “ Referenced Entity ”), the first to occur of:

(A) the date that a reorganization, merger, consolidation, recapitalization, or similar transaction (other than a spinoff, exchange offer or similar transaction to or with the applicable Referenced Entity’s public shareholders) is consummated, unless: (i) at least 50% of the outstanding voting securities of the surviving or resulting entity (including, without limitation, an entity which as a result of such transaction owns the Company either directly or through one or more subsidiaries) (“Resulting Entity”) are beneficially owned, directly or indirectly, by the persons who were the beneficial owners of the outstanding voting securities of the Corporation immediately prior to such transaction in substantially the same proportions as their beneficial ownership, immediately prior to such transaction, of the outstanding voting securities of the Corporation and (ii) immediately following such transaction no person or persons acting as a group beneficially owns capital stock of the Resulting Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Resulting Entity;

(B) the date that a majority of members of the Referenced Entity’s Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Referenced Entity’s Board before the date of the appointment or election; provided that no individual shall be considered to be so endorsed if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Referenced Entity’s Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest;

(C) the date that any one person, or persons acting as a group, acquires (or has or have acquired as of the date of the most recent acquisition by such person or persons) beneficial ownership of stock of the Referenced Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Referenced Entity; or

(D) the date that any one person acquires, or persons acting as a group acquire (or has or have acquired as of the date of the most recent acquisition by such person or persons), assets from the Referenced Entity that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value of all of the assets of the Referenced Entity immediately before such acquisition or acquisitions.

1.2 “ Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time. For purposes of the Plan and this Agreement, references to sections of the Code shall be deemed to include references to any applicable regulations thereunder and any successor or similar provision.

1.3 “ Deferred Compensation Plan ” means the MGM Growth Properties LLC 2016 Deferred Compensation Plan for Non-Employee Directors.

1.4 “ Disability ” means that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable

 

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physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months or is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Company and its Affiliates.

1.5 “ Fair Market Value ” or “ FMV ” shall have the meaning set forth for such term in the Plan.

1.6 “ Restricted Share Units ” means an award of Restricted Share Units granted to a Participant pursuant to Article 8 of the Plan.

1.7 “ Section 409A ” means Code Section 409A, the regulations thereunder promulgated by the United States Department of Treasury and other guidance issued thereunder.

1.8 “ Share ” means a share of Class A common shares representing limited liability company interests of the Company.

2. Grant to Participant . The Company hereby grants to the Participant, subject to the terms and conditions of the Plan and this Agreement, and contingent upon the closing of the initial public offering of Shares as contemplated by that certain Form S-11 filed on March 22, 2016, an award of [●] Restricted Share Units (the “ Award ”). Except as otherwise set forth in the Plan or this Agreement, (i) each Restricted Share Unit represents the right to receive one (1) Share upon vesting of such Restricted Share Units, (ii) unless and until the Restricted Share Units have vested in accordance with the terms of this Agreement, the Participant shall not have any right to delivery of the Shares underlying such Restricted Share Units or any other consideration in respect thereof and (iii) each Restricted Share Unit that vests, and any Dividend Equivalent Rights earned under Section 3.4(B), shall be paid to the Participant in Shares within thirty (30) days following the date that the Restricted Share Unit vests or the date(s) set forth in Sections 3.1 and 3.2, as applicable, unless such payment is deferred pursuant to the terms of the Deferred Compensation Plan, provided that any fractional Shares shall be paid in cash.

3. Terms and Conditions .

3.1 Vesting Schedule . Subject to Section 3.2 and the Participant’s continued service with the Company or one of its Affiliates through the Vesting Date, the Restricted Share Units shall vest in full on the earlier of (a) the first anniversary of the date of grant of the Restricted Share Units and (b) the date of the next annual meeting of MGM’s stockholders following June 1, 2016 (the “ Vesting Date ”). The Restricted Share Units that vest on the Vesting Date, and any Dividend Equivalent Rights earned under Section 3.4(B), shall be paid to the Participant in Shares within thirty (30) days following the Vesting Date, unless such payment is deferred pursuant to the terms of the Deferred Compensation Plan, provided , that any fractional Shares shall be paid in cash.

3.2 Vesting at Cessation of Service . Upon cessation of service with the Company and its Affiliates for any reason, the unvested portion of the Restricted Share Units shall be forfeited without any consideration; provided , however, that, upon cessation of service on the Board of Directors of MGM due to the Participant’s death, Disability or voluntary separation after five years of such service, any unvested Restricted Share Units, and any

 

3

Dividend Equivalent Rights earned under Section 3.4(B), shall become immediately vested and shall be paid in Shares within thirty (30) days after such event, unless such payment is deferred pursuant to the terms of the Deferred Compensation Plan, provided , that any fractional Shares shall be paid in cash.

3.3 Board Discretion . The Board, in its discretion, may accelerate the vesting of the balance, or some lesser portion, of the Participant’s unvested Restricted Share Units at any time, subject to the terms of the Plan and this Agreement. If so accelerated, the Restricted Share Units will be considered as having vested as of the date specified by the Board or an applicable written agreement but the Board will have no right to accelerate any payment under this Agreement if such acceleration would cause this Agreement to fail to comply with, or give rise to tax, penalties or interest under, Section 409A.

3.4 No Rights as a Shareholder; Dividend Equivalent Rights .

A. Participant will have no rights as a shareholder with respect to any Shares subject to Restricted Share Units until the Restricted Share Units have vested and Shares relating thereto have been issued and recorded on the records of the Company or its transfer agent or registrars.

B. In accordance with Article 13 of the Plan, this Award is granted together with Dividend Equivalent Rights. Whenever a dividend is paid with respect to the Company’s Shares, a corresponding Dividend Equivalent Right shall be credited with respect to each outstanding Restricted Share Unit then held by the Participant in a number of additional full and fractional Restricted Share Units calculated based on the Fair Market Value of the Shares at the time such dividend is paid. Any such additional Restricted Share Units shall be subject to the same vesting, forfeiture, settlement and other terms and conditions as the underlying Restricted Share Units with respect to which they were credited.

3.5 Limits on Transferability . The Restricted Share Units granted under this Agreement may be transferred solely to a trust in which the Participant or the Participant’s spouse control the management of the assets. With respect to Restricted Share Units, if any, that have been transferred to a trust, references in this Agreement to vesting related to such Restricted Share Units shall be deemed to include such trust. Any transfer of Restricted Share Units shall be subject to the terms and conditions of the Plan and this Agreement and the transferee shall be subject to the same terms and conditions as if it were the Participant. No interest of the Participant under this Agreement shall be subject to attachment, execution, garnishment, sequestration, the laws of bankruptcy or any other legal or equitable process.

3.6 Adjustments . The Award shall be subject to adjustment by the Board in accordance with Section 4.4 of the Plan in the case of certain corporate reorganization events.

3.7 No Right to Continued Performance of Services . The grant of the Restricted Share Units does not confer upon the Participant any right to continue to serve on the Board, nor may it interfere in any way with the right of the Company or the Board to terminate the Participant’s services at any time.

 

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3.8 Compliance With Law and Regulations . The grant and vesting of Restricted Share Units and the obligation of the Company to issue Shares under this Agreement are subject to all applicable federal and state laws, rules and regulations, including those related to disclosure of financial and other information to the Participant and to approvals by any government or regulatory agency as may be required. The Company shall not be required to issue or deliver any certificates for Shares prior to (A) the listing of such shares on any stock exchange on which the Shares may then be listed and (B) the completion of any registration or qualification of such shares under any federal or state law, or any rule or regulation of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable.

3.9 Change of Control . Upon the occurrence of a Change of Control, unless otherwise specifically prohibited under applicable laws or by the applicable rules and regulations of any governing governmental agencies or national securities exchanges, any unvested Restricted Share Units shall become immediately vested and shall be paid in Shares within thirty (30) days after such Change of Control; provided , that such payment shall not be accelerated to the extent such acceleration would cause this Agreement to fail to comply with, or give rise to any tax, interest or penalties under, Section 409A; provided , further, that any fractional Shares shall be paid in cash.

4. Investment Representation . The Participant must, within five (5) days of demand by the Company furnish the Company an agreement satisfactory to the Company in which the Participant represents that the Shares acquired upon vesting are being acquired for investment. The Company will have the right, at its election, to place legends on the certificates representing the Shares so being issued with respect to limitations on transferability imposed by federal and/or state laws, and the Company will have the right to issue “stop transfer” instructions to its transfer agent.

5. Participant Bound by Plan . The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof as amended from time to time.

6. [Reserved.]

7. Notices . Any notice hereunder to the Company must be addressed to: MGM Growth Properties LLC, c/o MGM Resorts, 3600 Las Vegas Boulevard South, Las Vegas, Nevada 89109, Attention: Designated legal counsel for purposes of administration of the MGM Growth Properties LLC 2016 Omnibus Incentive Plan, and any notice hereunder to the Participant must be addressed to the Participant at the Participant’s last address on the records of the Company, subject to the right of either party to designate at any time hereafter in writing some other address. Any notice shall be deemed to have been duly given on personal delivery or three (3) days after being sent in a properly sealed envelope, addressed as set forth above, and deposited (with first class postage prepaid) in the United States mail.

8. Entire Agreement . This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or

 

5

implied, and including, without limitation, any agreement between the Participant and the Company or any of its Affiliates whether previously entered into, currently effective or entered into in the future that provides terms and conditions for equity awards) which relate to the subject matter hereof.

9. Waiver . No waiver of any breach or condition of this Agreement shall be deemed a waiver of any other or subsequent breach or condition whether of like or different nature.

10. Participant Undertaking . The Participant agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or effect one or more of the obligations or restrictions imposed on either the Participant or the Restricted Share Units pursuant to this Agreement.

11. Successors and Assigns . The provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the Participant’s estate, whether or not any such person shall have become a party to this Agreement and agreed in writing to be joined herein and be bound by the terms hereof.

12. Governing Law . The parties hereto agree that the validity, construction and interpretation of this Agreement shall be governed by the laws of the state of Nevada.

13. Arbitration . Except as otherwise provided in Exhibit A to this Agreement (which constitutes a material provision of this Agreement), disputes relating to this Agreement shall be resolved by arbitration pursuant to Exhibit A hereto.

14. Amendment . This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto; provided that the Company may alter, modify or amend this Agreement unilaterally if such change is not materially adverse to the Participant or to cause this Agreement to comply with applicable law or avoid the imposition of any tax, interest or penalty under Section 409A.

15. Severability . The provisions of this Agreement are severable and if any portion of this Agreement is declared contrary to any law, regulation or is otherwise invalid, in whole or in part, the remaining provisions of this Agreement shall nevertheless be binding and enforceable.

16. Execution . Each party agrees that an electronic, facsimile or digital signature or an online acceptance or acknowledgment will be accorded the full legal force and effect of a handwritten signature under Nevada law. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

17. Variation of Pronouns . All pronouns and any variations thereof contained herein shall be deemed to refer to masculine, feminine, neuter, singular or plural, as the identity of the person or persons may require.

 

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18. Tax Treatment; Section 409A . The Participant shall be responsible for all taxes with respect to the Restricted Share Units. The terms of this Award shall be subject to Section 20.12 of the Plan (relating to Section 409A), which shall be incorporated herein by reference.

[The remainder of this page is left blank intentionally.]

 

7

IN WITNESS WHEREOF, the parties hereto have executed this Restricted Share Units Agreement as of the date first written above.

 

MGM GROWTH PROPERTIES LLC
By:  

 

Name:  
Title:  
PARTICIPANT
By:  

 

Name:  

[Signature Page to Restricted Share Units Agreement]

EXHIBIT A

ARBITRATION

This Exhibit A sets forth the methods for resolving disputes should any arise under the Agreement, and accordingly, this Exhibit A shall be considered a part of the Agreement.

 

1. Except for a claim by either Participant or the Company for injunctive relief where such would be otherwise authorized by law, any controversy or claim arising out of or relating to the Agreement or the breach hereof including without limitation any claim involving the interpretation or application of the Agreement or the Plan, shall be submitted to binding arbitration in accordance with the employment arbitration rules then in effect of the Judicial Arbitration and Mediation Service (“ JAMS ”), to the extent not inconsistent with this paragraph. This Exhibit A covers any claim Participant might have against any officer, director, employee, or agent of the Company, or any of the Company’s subsidiaries, divisions, and Affiliates, and all successors and assigns of any of them. The promises by the Company and Participant to arbitrate differences, rather than litigate them before courts or other bodies, provide consideration for each other, in addition to other consideration provided under the Agreement.

 

2. Claims Subject to Arbitration : This Exhibit A contemplates mandatory arbitration to the fullest extent permitted by law. Only claims that are justiciable under applicable state or federal law are covered by this Exhibit A. Such claims include any and all alleged violations of any state or federal law whether common law, statutory, arising under regulation or ordinance, or any other law, brought by any current or former directors of the Company.

 

3. Non-Waiver of Substantive Rights : This Exhibit A does not waive any rights or remedies available under applicable statutes or common law. However, it does waive Participant’s right to pursue those rights and remedies in a judicial forum. By signing the Agreement and the acknowledgment at the end of this Exhibit A, the undersigned Participant voluntarily agrees to arbitrate his or her claims covered by this Exhibit A.

 

4. Time Limit to Pursue Arbitration; Initiation : To ensure timely resolution of disputes, Participant and the Company must initiate arbitration within the statute of limitations (deadline for filing) provided for by applicable law pertaining to the claim. The failure to initiate arbitration within this time limit will bar any such claim. The parties understand that the Company and Participant are waiving any longer statutes of limitations that would otherwise apply, and any aggrieved party is encouraged to give written notice of any claim as soon as possible after the event(s) in dispute so that arbitration of any differences may take place promptly. The parties agree that the aggrieved party must, within the time frame provided by this Exhibit A, give written notice of a claim pursuant to Section 7 of the Agreement. In the event such notice is to be provided to the Company, the Participant shall provide a copy of such notice of a claim to the Company’s designated legal counsel for purposes of arbitration. Written notice shall identify and describe the nature of the claim, the supporting facts and the relief or remedy sought.

 

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5. Selecting an Arbitrator : This Exhibit A mandates Arbitration under the then current rules of the Judicial Arbitration and Mediation Service (JAMS) regarding employment disputes. The arbitrator shall be either a retired judge or an attorney experienced in employment law and licensed to practice in the state in which arbitration is convened. The parties shall select one arbitrator from among a list of three qualified neutral arbitrators provided by JAMS. If the parties are unable to agree on the arbitrator, each party shall strike one name and the remaining named arbitrator shall be selected.

 

6. Representation/Arbitration Rights and Procedures :

 

  a. Participant may be represented by an attorney of his/her choice at his/her own expense.

 

  b. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of Nevada (without regard to its choice of law provisions) and/or federal law when applicable. In all cases, this Exhibit A shall provide for the broadest level of arbitration of claims between the Company and Participant under Nevada or applicable federal law. The arbitrator is without jurisdiction to apply any different substantive law or law of remedies.

 

  c. The arbitrator shall have no authority to award non-economic damages or punitive damages except where such relief is specifically authorized by an applicable state or federal statute or common law. In such a situation, the arbitrator shall specify in the award the specific statute or other basis under which such relief is granted.

 

  d. The applicable law with respect to privilege, including attorney-client privilege, work product, and offers to compromise must be followed.

 

  e. The parties shall have the right to conduct reasonable discovery, including written and oral (deposition) discovery and to subpoena and/or request copies of records, documents and other relevant discoverable information consistent with the procedural rules of JAMS. The arbitrator shall decide disputes regarding the scope of discovery and shall have authority to regulate the conduct of any hearing and/or trial proceeding. The arbitrator shall have the right to entertain a motion to dismiss and/or motion for summary judgment.

 

  f. The parties shall exchange witness lists at least 30 days prior to the trial/hearing procedure. The arbitrator shall have subpoena power so that either Participant or the Company may summon witnesses. The arbitrator shall use the Federal Rules of Evidence. Both parties have the right to file a post hearing brief. Any party, at its own expense, may arrange for and pay the cost of a court reporter to provide a stenographic record of the proceedings.

 

  g. Any arbitration hearing or proceeding shall take place in private, not open to the public, in Las Vegas, Nevada.

 

7.

Arbitrator’s Award : The arbitrator shall issue a written decision containing the specific issues raised by the parties, the specific findings of fact, and the specific conclusions of

 

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  law. The award shall be rendered promptly, typically within 30 days after conclusion of the arbitration hearing, or the submission of post-hearing briefs if requested. The arbitrator may not award any relief or remedy in excess of what a court could grant under applicable law. The arbitrator’s decision is final and binding on both parties. Judgment upon an award rendered by the arbitrator may be entered in any court having competent jurisdiction.

 

  a. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Exhibit A and to enforce an arbitration award.

 

  b. In the event of any administrative or judicial action by any agency or third party to adjudicate a claim on behalf of Participant which is subject to arbitration under this Exhibit A, Participant hereby waives the right to participate in any monetary or other recovery obtained by such agency or third party in any such action, and Participant’s sole remedy with respect to any such claim shall be any award decreed by an arbitrator pursuant to the provisions of this Exhibit A.

 

8. Fees and Expenses : The Company shall be responsible for paying any filing fee and the fees and costs of the arbitrator; provided, however, that if Participant is the party initiating the claim, Participant will contribute an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which Participant is (or was last) providing services to the Company. Participant and the Company shall each pay for their own expenses, attorney’s fees (a party’s responsibility for his/her/its own attorney’s fees is only limited by any applicable statute specifically providing that attorney’s fees may be awarded as a remedy), and costs and fees regarding witness, photocopying and other preparation expenses. If any party prevails on a statutory claim that affords the prevailing party attorney’s fees and costs, or if there is a written agreement providing for attorney’s fees and/or costs, the arbitrator may award reasonable attorney’s fees and/or costs to the prevailing party, applying the same standards a court would apply under the law applicable to the claim(s).

 

9. The arbitration provisions of this Exhibit A shall survive the cessation of Participant’s service with the Company and its Affiliates and the expiration of the Agreement. These arbitration provisions can only be modified or revoked in a writing signed by both parties and which expressly states an intent to modify or revoke the provisions of this Exhibit A.

 

10. The arbitration provisions of this Exhibit A do not alter or affect the termination provisions of this Agreement.

 

11. Capitalized terms not defined in this Exhibit A shall have the same definition as in the Agreement to which this is Exhibit A.

 

12. If any provision of this Exhibit A is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of Exhibit A. All other provisions shall remain in full force and effect.

 

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ACKNOWLEDGMENT

BOTH PARTIES ACKNOWLEDGE THAT: THEY HAVE CAREFULLY READ THIS EXHIBIT A IN ITS ENTIRETY, THEY UNDERSTAND ITS TERMS, EXHIBIT A CONSTITUTES A MATERIAL TERM AND CONDITION OF THE RESTRICTED SHARE UNITS AGREEMENT BETWEEN THE PARTIES TO WHICH IT IS EXHIBIT A, AND THEY AGREE TO ABIDE BY ITS TERMS.

The parties also specifically acknowledge that by agreeing to the terms of this Exhibit A, they are waiving the right to pursue claims covered by this Exhibit A in a judicial forum and instead agree to arbitrate all such claims before an arbitrator without a court or jury. It is specifically understood that this Exhibit A does not waive any rights or remedies which are available under applicable state and federal statutes or common law. Both parties enter into this Exhibit A voluntarily and not in reliance on any promises or representation by the other party other than those contained in the Agreement or in this Exhibit A.

Participant further acknowledges that Participant has been given the opportunity to discuss this Exhibit A with Participant’s private legal counsel and that Participant has availed himself/herself of that opportunity to the extent Participant wishes to do so.

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Exhibit 10.16

FORM – MGM EMPLOYEES

MGM GROWTH PROPERTIES LLC

FORM OF RESTRICTED SHARE UNITS AGREEMENT

(MGM EMPLOYEES)

 

 

No. of Restricted Share Units: [●]

This Restricted Share Units Agreement (including its Exhibit, the “ Agreement ”) is made by and between MGM Growth Properties LLC, a Delaware limited liability company (the “ Company ”), and [●] (the “ Participant ”) with an effective date of [●].

RECITALS

A. The Board of Directors of the Company (the “ Board ”) has adopted the MGM Growth Properties LLC 2016 Omnibus Incentive Plan (the “ Plan ”), which provides for the granting of Restricted Share Units (as that term is defined in Section 1 below) to selected service providers. Capitalized terms used and not defined in this Agreement shall have the same meanings as in the Plan.

B. The Board believes that the grant of Restricted Share Units will stimulate the interest of selected employees in, and strengthen their desire to remain with, the Company or any of its Affiliates (as hereinafter defined).

C. The Board has determined that the Participant has provided, or is expected to provide, services to the Company, and in consideration thereof, the Board has authorized the grant of Restricted Share Units to the Participant pursuant to the terms of the Plan and this Agreement.

D. The Board and the Participant intend that the Plan and this Agreement constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any employment agreement between the Participant and the Company or any of its Affiliates whether previously entered into, currently effective or entered into in the future) which relate to the subject matter hereof.

Accordingly, in consideration of the mutual covenants contained herein, the parties agree as follows:

1. Definitions .

1.1 “ Change of Control ” means, with respect to (x) the Company or (y) provided that it is an Affiliate of the Company at the relevant time, MGM (each of (x) and (y), a “ Referenced Entity ”), the first to occur of:

(A) the date that a reorganization, merger, consolidation, recapitalization, or similar transaction (other than a spinoff, exchange offer or similar transaction to or with the applicable Referenced Entity’s public shareholders) is consummated, unless: (i) at least 50% of the outstanding voting securities of the surviving or resulting entity (including, without limitation, an entity which as a result of such transaction owns the Company either directly or through one or more subsidiaries) (“Resulting Entity”) are beneficially owned, directly or indirectly, by the persons who were the beneficial owners of the outstanding voting securities of the Corporation immediately prior to such transaction in substantially the same proportions as their beneficial ownership, immediately prior to such transaction, of the outstanding voting securities of the Corporation and (ii) immediately following such transaction no person or persons acting as a group beneficially owns capital stock of the Resulting Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Resulting Entity;

(B) the date that a majority of members of the Referenced Entity’s Board is replaced during any twelve (12) month period by directors whose appointment or election is not endorsed by a majority of the members of the Referenced Entity’s Board before the date of the appointment or election; provided that no individual shall be considered to be so endorsed if such individual initially assumed office as a result of either an actual or threatened “Election Contest” (as described in Rule 14a-11 promulgated under the Securities Exchange Act of 1934) or other actual or threatened solicitation of proxies or consents by or on behalf of a Person other than the Referenced Entity’s Board (a “Proxy Contest”) including by reason of any agreement intended to avoid or settle any Election Contest or Proxy Contest;

(C) the date that any one person, or persons acting as a group, acquires (or has or have acquired as of the date of the most recent acquisition by such person or persons) beneficial ownership of stock of the Referenced Entity possessing thirty-five percent (35%) or more of the total voting power of the stock of the Referenced Entity; or

(D) the date that any one person acquires, or persons acting as a group acquire (or has or have acquired as of the date of the most recent acquisition by such person or persons), assets from the Referenced Entity that have a total gross fair market value equal to or more than forty percent (40%) of the total gross fair market value of all of the assets of the Referenced Entity immediately before such acquisition or acquisitions.

1.2 “ Code ” means the U.S. Internal Revenue Code of 1986, as amended from time to time. For purposes of the Plan and this Agreement, references to sections of the Code shall be deemed to include references to any applicable regulations thereunder and any successor or similar provision.

1.3 “ Current Employment Agreement ” means the Participant’s employment agreement with the Company or any of its Affiliates in effect as of the applicable date of determination.

1.4 “ Disability ” means that the Participant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous

 

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period of not less than twelve (12) months or is, by reason of any medically determinable physical or mental impairment that can be expected to result in death or can be expected to last for a continuous period of not less than twelve (12) months, receiving income replacement benefits for a period of not less than three (3) months under an accident and health plan covering employees of the Employer.

1.5 “ Employer ” means the Company and its Affiliates.

1.6 “ Employer’s Good Cause ” shall have the meaning given such term or a comparable term in the Current Employment Agreement; provided , that if there is no Current Employment Agreement or if such agreement does not include such term or a comparable term, “ Employer’s Good Cause ” means:

A. Participant’s failure to abide by the Employer’s policies and procedures, misconduct, insubordination, inattention to the Employer’s business, failure to perform the duties required of the Participant up to the standards established by the Employer’s senior management, or material breach of the Current Employment Agreement, which failure or breach is not cured by the Participant within ten (10) days after written notice thereof from the Employer specifying the facts and circumstances of the alleged failure or breach, provided , however , that such notice and opportunity to cure shall not be required if, in the good faith judgment of the Board, such breach is not capable of being cured within ten (10) days;

B. Participant’s failure or inability to apply for and obtain any license, qualification, clearance or other similar approval which the Employer or any regulatory authority which has jurisdiction over the Employer requests or requires that the Participant obtain;

C. the Employer is directed by any governmental authority in Nevada, Michigan, Mississippi, Illinois, Macau S.A.R., or any other jurisdiction in which the Employer is engaged in a gaming business or where the Employer has applied to (or during the term of the Participant’s employment under the Current Employment Agreement, may apply to) engage in a gaming business to cease business with the Participant;

D. the Employer determines, in its reasonable judgment, that the Participant was, is or might be involved in, or is about to be involved in, any activity, relationship(s) or circumstance which could or does jeopardize the Employer’s business, reputation or licenses to engage in the gaming business; or

E. any of the Employer’s gaming business licenses are threatened to be, or are, denied, curtailed, suspended or revoked as a result of the Participant’s employment by the Employer or as a result of the Participant’s actions.

1.7 “ Fair Market Value ” or “ FMV ” shall have the meaning set forth for such term in the Plan.

1.8 “ Participant’s Good Cause ” shall have the meaning given such term or a comparable term in the Current Employment Agreement; provided , that if there is no Current Employment Agreement or if such agreement does not include such term or a comparable term, “ Participant’s Good Cause ” means:

 

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A. The failure of the Employer to pay the Participant any compensation when due; or

B. A material reduction in the scope of duties or responsibilities of the Participant or any reduction in the Participant’s salary.

Within ten (10) days following the first occurrence of a breach constituting Participant’s Good Cause, the Participant shall give the Employer thirty (30) days’ advance written notice specifying the facts and circumstances of the alleged breach. During such thirty (30) day period, the Employer may either cure the breach (in which case such notice will be considered withdrawn) or declare that the Employer disputes that Participant’s Good Cause exists, in which case Participant’s Good Cause shall not exist until the dispute is resolved in accordance with the methods for resolving disputes specified in Exhibit A hereto.

1.9 “ Restricted Share Units ” means an award of Restricted Share Units granted to a Participant pursuant to Article 8 of the Plan.

1.10 “ Section 409A ” means Code Section 409A, the regulations thereunder promulgated by the United States Department of Treasury and other guidance issued thereunder.

1.11 “ Share ” means a share of Class A common shares representing limited liability company interests of the Company.

2. Grant to Participant . The Company hereby grants to the Participant, subject to the terms and conditions of the Plan and this Agreement, and contingent upon the closing of the initial public offering of Shares as contemplated by that certain Form S-11 filed on March 22, 2016, an award of [●] Restricted Share Units (the “ Award ”). Except as otherwise set forth in the Plan or this Agreement, (i) each Restricted Share Unit represents the right to receive one (1) Share upon vesting of such Restricted Share Units, (ii) unless and until the Restricted Share Units have vested in accordance with the terms of this Agreement, the Participant shall not have any right to delivery of the Shares underlying such Restricted Share Units or any other consideration in respect thereof and (iii) each Restricted Share Unit that vests, and any Dividend Equivalent Rights earned under Section 3.4(B), shall be paid to the Participant in Shares, less applicable withholding, within thirty (30) days following the date that the Restricted Share Unit vests or the date(s) set forth in Sections 3.1 and 3.2, as applicable; provided , that any fractional Shares shall be paid in cash.

3. Terms and Conditions .

3.1 Vesting Schedule . Subject to Section 3.2 and the Participant’s continued service with the Company or one of its Affiliates through the Vesting Date, the Restricted Share Units shall vest in full on the first anniversary of the date of grant of the Restricted Share Units (the “ Vesting Date ”). The Restricted Share Units that vest on the Vesting Date, and any Dividend Equivalent Rights earned under Section 3.4(B), shall be paid to the Participant in Shares within thirty (30) days following the Vesting Date, provided , that any fractional Shares shall be paid in cash.

 

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3.2 Vesting at Termination . Upon termination of employment with the Employer for any reason any unvested Restricted Share Units shall be forfeited without any consideration; provided , however , that, upon termination of employment by the Employer without Employer’s Good Cause, by the Participant with Participant’s Good Cause, or due to the Participant’s death or Disability, any unvested Restricted Share Units, and any Dividend Equivalent Rights earned under Section 3.4(B), shall be paid on the same schedule determined in Section 3.1 herein; provided , however , that such continued vesting shall immediately cease and unvested Restricted Share Units shall be forfeited in the event the Participant breaches any post-termination covenant with the Company or its Affiliates in any employment agreement or otherwise (after taking into account any applicable cure period).

3.3 Board Discretion . The Board, in its discretion, may accelerate the vesting of the balance, or some lesser portion, of the Participant’s unvested Restricted Share Units at any time, subject to the terms of the Plan and this Agreement. If so accelerated, the Restricted Share Units will be considered as having vested as of the date specified by the Board or an applicable written agreement but the Board will have no right to accelerate any payment under this Agreement if such acceleration would cause this Agreement to fail to comply with Section 409A.

3.4 No Rights as a Shareholder; Dividend Equivalent Rights .

A. Participant will have no rights as a shareholder with respect to any Shares subject to Restricted Share Units until the Restricted Share Units have vested and Shares relating thereto have been issued and recorded on the records of the Company or its transfer agent or registrars.

B. In accordance with Article 13 of the Plan, this Award is granted together with Dividend Equivalent Rights. Whenever a dividend is paid with respect to the Company’s Shares, a corresponding Dividend Equivalent Right shall be credited with respect to each outstanding Restricted Share Unit then held by the Participant in a number of additional full and fractional Restricted Share Units calculated based on the Fair Market Value of the Shares at the time such dividend is paid. Any such additional Restricted Share Units shall be subject to the same vesting, forfeiture, settlement and other terms and conditions as the underlying Restricted Share Units with respect to which they were credited.

3.5 Limits on Transferability . The Restricted Share Units granted under this Agreement may be transferred solely to a trust in which the Participant or the Participant’s spouse control the management of the assets. With respect to Restricted Share Units, if any, that have been transferred to a trust, references in this Agreement to vesting related to such Restricted Share Units shall be deemed to include such trust. Any transfer of Restricted Share Units shall be subject to the terms and conditions of the Plan and this Agreement and the transferee shall be subject to the same terms and conditions as if it were the Participant. No interest of the Participant under this Agreement shall be subject to attachment, execution, garnishment, sequestration, the laws of bankruptcy or any other legal or equitable process.

3.6 Adjustments . The Award shall be subject to adjustment by the Board in accordance with Section 4.4 of the Plan in the case of certain corporate reorganization events.

 

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3.7 No Right to Continued Performance of Services . The grant of the Restricted Share Units does not confer upon the Participant any right to continue to be employed by the Company or any of its Affiliates nor may it interfere in any way with the right of the Company or any of its Affiliates for which the Participant performs services to terminate the Participant’s employment at any time.

3.8 Compliance With Law and Regulations . The grant and vesting of Restricted Share Units and the obligation of the Company to issue Shares under this Agreement are subject to all applicable federal and state laws, rules and regulations, including those related to disclosure of financial and other information to the Participant and to approvals by any government or regulatory agency as may be required. The Company shall not be required to issue or deliver any certificates for Shares prior to (A) the listing of such shares on any stock exchange on which the Shares may then be listed and (B) the completion of any registration or qualification of such shares under any federal or state law, or any rule or regulation of any government body which the Company shall, in its sole discretion, determine to be necessary or advisable.

3.9 Change of Control . Upon the occurrence of a Change of Control, the Board is authorized (but not obligated) to make adjustments in the terms and conditions of the Award, including without limitation the following (or any combination thereof): (a) continuation or assumption of the Award under the Plan by the Company (if it is the surviving company or corporation) or by the surviving company or corporation or its parent; (b) substitution by the surviving company or corporation or its parent of awards with substantially the same terms for the Award (with appropriate adjustments to the type of consideration payable upon settlement of the Award); (c) accelerated exercisability, vesting and/or payment under the Award immediately prior to or upon the occurrence of such event or upon a termination of employment or other service following such event; and (d) if all or substantially all of the Company’s outstanding Shares transferred in exchange for cash consideration in connection with such Change of Control, cancellation of all or any portion of the Award for fair value (in the form of cash, shares, other property or any combination thereof) as determined in the sole discretion of the Board.

4. Investment Representation . The Participant must, within five (5) days of demand by the Company furnish the Company an agreement satisfactory to the Company in which the Participant represents that the Shares acquired upon vesting are being acquired for investment. The Company will have the right, at its election, to place legends on the certificates representing the Shares so being issued with respect to limitations on transferability imposed by federal and/or state laws, and the Company will have the right to issue “stop transfer” instructions to its transfer agent.

5. Participant Bound by Plan . The Participant hereby acknowledges receipt of a copy of the Plan and agrees to be bound by all the terms and provisions thereof as amended from time to time.

6. Withholding . The Company or any of its Affiliates shall have the right, and is hereby authorized, to withhold any applicable withholding taxes in respect of the Restricted Share Units awarded by this Agreement, their grant, vesting or otherwise, and to take such other

 

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action as may be necessary in the opinion of the Company to satisfy all obligations for the payment of such withholding taxes, which may include, without limitation, reducing the number of shares otherwise distributable to the Participant by the number of Shares whose Fair Market Value is equal to the amount of tax required to be withheld by the Company or any of its Affiliates as a result of the vesting or settlement or otherwise of the Restricted Share Units.

7. Notices . Any notice hereunder to the Company must be addressed to: MGM Growth Properties LLC, c/o MGM Resorts, 3600 Las Vegas Boulevard South, Las Vegas, Nevada 89109, Attention: Designated legal counsel for purposes of administration of the MGM Growth Properties LLC 2016 Omnibus Incentive Plan, and any notice hereunder to the Participant must be addressed to the Participant at the Participant’s last address on the records of the Company, subject to the right of either party to designate at any time hereafter in writing some other address. Any notice shall be deemed to have been duly given on personal delivery or three (3) days after being sent in a properly sealed envelope, addressed as set forth above, and deposited (with first class postage prepaid) in the United States mail.

8. Entire Agreement . This Agreement and the Plan constitute the entire agreement between the parties hereto with regard to the subject matter hereof and shall supersede any other agreements, representations or understandings (whether oral or written and whether express or implied, and including, without limitation, any employment agreement between the Participant and the Company or any of its Affiliates whether previously entered into, currently effective or entered into in the future that includes terms and conditions regarding equity awards) which relate to the subject matter hereof.

9. Waiver . No waiver of any breach or condition of this Agreement shall be deemed a waiver of any other or subsequent breach or condition whether of like or different nature.

10. Participant Undertaking . The Participant agrees to take whatever additional action and execute whatever additional documents the Company may deem necessary or advisable to carry out or effect one or more of the obligations or restrictions imposed on either the Participant or the Restricted Share Units pursuant to this Agreement.

11. Successors and Assigns . The provisions of this Agreement shall inure to the benefit of, and be binding upon, the Company and its successors and assigns and upon the Participant, the Participant’s assigns and the legal representatives, heirs and legatees of the Participant’s estate, whether or not any such person shall have become a party to this Agreement and agreed in writing to be joined herein and be bound by the terms hereof.

12. Governing Law . The parties hereto agree that the validity, construction and interpretation of this Agreement shall be governed by the laws of the state of Nevada.

13. Arbitration . Except as otherwise provided in Exhibit A to this Agreement (which constitutes a material provision of this Agreement), disputes relating to this Agreement shall be resolved by arbitration pursuant to Exhibit A hereto.

14. Clawback Policy . By accepting this award the Participant hereby agrees that this award and any other compensation paid or payable to the Participant is subject to Company’s Policy on Recovery of Incentive Compensation in Event of Financial Restatement (or any

 

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successor policy) as in effect from time to time, and that this award shall be considered incentive compensation for purposes of such policy. In addition, the Participant agrees that such policy may be amended from time to time by the Board in a manner designed to comply with applicable law and/or stock exchange listing requirements. The Participant also hereby agrees that the award granted hereunder and any other compensation payable to the Participant shall be subject to recovery (in whole or in part) by the Company to the minimum extent required by applicable law and/or stock exchange listing requirements.

15. Amendment . This Agreement may not be altered, modified, or amended except by written instrument signed by the parties hereto; provided that the Company may alter, modify or amend this Agreement unilaterally if such change is not materially adverse to the Participant or to cause this Agreement to comply with applicable law or avoid the imposition of any tax, interest or penalty under Section 409A.

16. Severability . The provisions of this Agreement are severable and if any portion of this Agreement is declared contrary to any law, regulation or is otherwise invalid, in whole or in part, the remaining provisions of this Agreement shall nevertheless be binding and enforceable.

17. Execution . Each party agrees that an electronic, facsimile or digital signature or an online acceptance or acknowledgment will be accorded the full legal force and effect of a handwritten signature under Nevada law. This Agreement may be signed in counterparts, each of which shall be an original, with the same effect as if the signatures thereto and hereto were upon the same instrument.

18. Variation of Pronouns . All pronouns and any variations thereof contained herein shall be deemed to refer to masculine, feminine, neuter, singular or plural, as the identity of the person or persons may require.

19. Tax Treatment; Section 409A . The Participant shall be responsible for all taxes with respect to the Restricted Share Units. The terms of this Award shall be subject to Section 20.12 of the Plan (relating to Section 409A), which shall be incorporated herein by reference.

[The remainder of this page is left blank intentionally.]

 

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IN WITNESS WHEREOF, the parties hereto have executed this Restricted Share Units Agreement as of the date first written above.

 

MGM GROWTH PROPERTIES LLC
By:  

 

Name:  
Title:  
PARTICIPANT
By:  

 

Name:  

 

[Signature Page to Restricted Share Units Agreement]

EXHIBIT A

ARBITRATION

This Exhibit A sets forth the methods for resolving disputes should any arise under the Agreement, and accordingly, this Exhibit A shall be considered a part of the Agreement.

 

1. Except for a claim by either Participant or the Company for injunctive relief where such would be otherwise authorized by law, any controversy or claim arising out of or relating to the Agreement or the breach hereof including without limitation any claim involving the interpretation or application of the Agreement or the Plan, shall be submitted to binding arbitration in accordance with the employment arbitration rules then in effect of the Judicial Arbitration and Mediation Service (“ JAMS ”), to the extent not inconsistent with this paragraph. This Exhibit A covers any claim Participant might have against any officer, director, employee, or agent of the Company, or any of the Company’s subsidiaries, divisions, and Affiliates, and all successors and assigns of any of them. The promises by the Company and Participant to arbitrate differences, rather than litigate them before courts or other bodies, provide consideration for each other, in addition to other consideration provided under the Agreement.

 

2. Claims Subject to Arbitration : This Exhibit A contemplates mandatory arbitration to the fullest extent permitted by law. Only claims that are justiciable under applicable state or federal law are covered by this Exhibit A. Such claims include any and all alleged violations of any state or federal law whether common law, statutory, arising under regulation or ordinance, or any other law, brought by any current or former employees of the Company and its Affiliates.

 

3. Non-Waiver of Substantive Rights : This Exhibit A does not waive any rights or remedies available under applicable statutes or common law. However, it does waive Participant’s right to pursue those rights and remedies in a judicial forum. By signing the Agreement and the acknowledgment at the end of this Exhibit A, the undersigned Participant voluntarily agrees to arbitrate his or her claims covered by this Exhibit A.

 

4. Time Limit to Pursue Arbitration; Initiation : To ensure timely resolution of disputes, Participant and the Company must initiate arbitration within the statute of limitations (deadline for filing) provided for by applicable law pertaining to the claim. The failure to initiate arbitration within this time limit will bar any such claim. The parties understand that the Company and Participant are waiving any longer statutes of limitations that would otherwise apply, and any aggrieved party is encouraged to give written notice of any claim as soon as possible after the event(s) in dispute so that arbitration of any differences may take place promptly. The parties agree that the aggrieved party must, within the time frame provided by this Exhibit A, give written notice of a claim pursuant to Section 7 of the Agreement. In the event such notice is to be provided to the Company, the Participant shall provide a copy of such notice of a claim to the Company’s designated legal counsel for purposes of arbitration. Written notice shall identify and describe the nature of the claim, the supporting facts and the relief or remedy sought.

 

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5. Selecting an Arbitrator : This Exhibit A mandates Arbitration under the then current rules of the Judicial Arbitration and Mediation Service (JAMS) regarding employment disputes. The arbitrator shall be either a retired judge or an attorney experienced in employment law and licensed to practice in the state in which arbitration is convened. The parties shall select one arbitrator from among a list of three qualified neutral arbitrators provided by JAMS. If the parties are unable to agree on the arbitrator, each party shall strike one name and the remaining named arbitrator shall be selected.

 

6. Representation/Arbitration Rights and Procedures :

 

  a. Participant may be represented by an attorney of his/her choice at his/her own expense.

 

  b. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of Nevada (without regard to its choice of law provisions) and/or federal law when applicable. In all cases, this Exhibit A shall provide for the broadest level of arbitration of claims between the Company and Participant under Nevada or applicable federal law. The arbitrator is without jurisdiction to apply any different substantive law or law of remedies.

 

  c. The arbitrator shall have no authority to award non-economic damages or punitive damages except where such relief is specifically authorized by an applicable state or federal statute or common law. In such a situation, the arbitrator shall specify in the award the specific statute or other basis under which such relief is granted.

 

  d. The applicable law with respect to privilege, including attorney-client privilege, work product, and offers to compromise must be followed.

 

  e. The parties shall have the right to conduct reasonable discovery, including written and oral (deposition) discovery and to subpoena and/or request copies of records, documents and other relevant discoverable information consistent with the procedural rules of JAMS. The arbitrator shall decide disputes regarding the scope of discovery and shall have authority to regulate the conduct of any hearing and/or trial proceeding. The arbitrator shall have the right to entertain a motion to dismiss and/or motion for summary judgment.

 

  f. The parties shall exchange witness lists at least 30 days prior to the trial/hearing procedure. The arbitrator shall have subpoena power so that either Participant or the Company may summon witnesses. The arbitrator shall use the Federal Rules of Evidence. Both parties have the right to file a post hearing brief. Any party, at its own expense, may arrange for and pay the cost of a court reporter to provide a stenographic record of the proceedings.

 

  g. Any arbitration hearing or proceeding shall take place in private, not open to the public, in Las Vegas, Nevada.

 

7.

Arbitrator’s Award : The arbitrator shall issue a written decision containing the specific issues raised by the parties, the specific findings of fact, and the specific conclusions of

 

A-2

  law. The award shall be rendered promptly, typically within 30 days after conclusion of the arbitration hearing, or the submission of post-hearing briefs if requested. The arbitrator may not award any relief or remedy in excess of what a court could grant under applicable law. The arbitrator’s decision is final and binding on both parties. Judgment upon an award rendered by the arbitrator may be entered in any court having competent jurisdiction.

 

  a. Either party may bring an action in any court of competent jurisdiction to compel arbitration under this Exhibit A and to enforce an arbitration award.

 

  b. In the event of any administrative or judicial action by any agency or third party to adjudicate a claim on behalf of Participant which is subject to arbitration under this Exhibit A, Participant hereby waives the right to participate in any monetary or other recovery obtained by such agency or third party in any such action, and Participant’s sole remedy with respect to any such claim shall be any award decreed by an arbitrator pursuant to the provisions of this Exhibit A.

 

8. Fees and Expenses : The Company shall be responsible for paying any filing fee and the fees and costs of the arbitrator; provided, however, that if Participant is the party initiating the claim, Participant will contribute an amount equal to the filing fee to initiate a claim in the court of general jurisdiction in the state in which Participant is (or was last) employed by the Company. Participant and the Company shall each pay for their own expenses, attorney’s fees (a party’s responsibility for his/her/its own attorney’s fees is only limited by any applicable statute specifically providing that attorney’s fees may be awarded as a remedy), and costs and fees regarding witness, photocopying and other preparation expenses. If any party prevails on a statutory claim that affords the prevailing party attorney’s fees and costs, or if there is a written agreement providing for attorney’s fees and/or costs, the arbitrator may award reasonable attorney’s fees and/or costs to the prevailing party, applying the same standards a court would apply under the law applicable to the claim(s).

 

9. The arbitration provisions of this Exhibit A shall survive the termination of Participant’s employment with the Company and its Affiliates and the expiration of the Agreement. These arbitration provisions can only be modified or revoked in a writing signed by both parties and which expressly states an intent to modify or revoke the provisions of this Exhibit A.

 

10. The arbitration provisions of this Exhibit A do not alter or affect the termination provisions of this Agreement.

 

11. Capitalized terms not defined in this Exhibit A shall have the same definition as in the Agreement to which this is Exhibit A.

 

12. If any provision of this Exhibit A is adjudged to be void or otherwise unenforceable, in whole or in part, such adjudication shall not affect the validity of the remainder of Exhibit A. All other provisions shall remain in full force and effect.

 

A-3

ACKNOWLEDGMENT

BOTH PARTIES ACKNOWLEDGE THAT: THEY HAVE CAREFULLY READ THIS EXHIBIT A IN ITS ENTIRETY, THEY UNDERSTAND ITS TERMS, EXHIBIT A CONSTITUTES A MATERIAL TERM AND CONDITION OF THE RESTRICTED SHARE UNITS AGREEMENT BETWEEN THE PARTIES TO WHICH IT IS EXHIBIT A, AND THEY AGREE TO ABIDE BY ITS TERMS.

The parties also specifically acknowledge that by agreeing to the terms of this Exhibit A, they are waiving the right to pursue claims covered by this Exhibit A in a judicial forum and instead agree to arbitrate all such claims before an arbitrator without a court or jury. It is specifically understood that this Exhibit A does not waive any rights or remedies which are available under applicable state and federal statutes or common law. Both parties enter into this Exhibit A voluntarily and not in reliance on any promises or representation by the other party other than those contained in the Agreement or in this Exhibit A.

Participant further acknowledges that Participant has been given the opportunity to discuss this Exhibit A with Participant’s private legal counsel and that Participant has availed himself/herself of that opportunity to the extent Participant wishes to do so.

[The remainder of this page is left blank intentionally.]

 

A-4

Exhibit 10.17

 

 

 

Published Deal CUSIP Number: 55303KAA1

Published Revolver CUSIP Number: 55303KAB9

Published Term A CUSIP Number: 55303KAD5

Published Term B CUSIP Number: 55303KAC7

CREDIT AGREEMENT

Dated as of April 25, 2016

among

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP,

as the Borrower,

Bank of America, N.A.,

as Administrative Agent and an L/C Issuer,

and

The Other Lenders Party Hereto

Bank of America, N.A., JPMorgan Chase Bank, N.A.,

Barclays Bank PLC, BNP Paribas Securities Corp., Citigroup Global Markets Inc.,

Credit Agricole Corporate and Investment Bank, Deutsche Bank Securities Inc.,

Fifth Third Bank, Morgan Stanley Senior Funding, Inc.,

Sumitomo Mitsui Banking Corporation and SunTrust Robinson Humphrey, Inc.,

as Joint Lead Arrangers and Joint Bookrunners

JPMorgan Chase Bank, N.A.,

as Syndication Agent

Bank of America, N.A., Barclays Bank PLC,

BNP Paribas Securities Corp., Citigroup Global Markets Inc., Citizens Bank, N.A.

Credit Agricole Corporate and Investment Bank, Deutsche Bank Securities Inc.,

Fifth Third Bank, Morgan Stanley Senior Funding, Inc.,

Sumitomo Mitsui Banking Corporation, SunTrust Bank and

The Bank of Nova Scotia,

as Co-Documentation Agents

 

 

 

 

TABLE OF CONTENTS

 

Section

          Page  

ARTICLE I DEFINITIONS AND ACCOUNTING TERMS

     1   

1.01

    

Defined Terms

     1   

1.02

    

Other Interpretive Provisions

     58   

1.03

    

Accounting Terms

     59   

1.04

    

Rounding

     59   

1.05

    

Times of Day

     59   

1.06

    

Letter of Credit Amounts

     59   

1.07

    

Pro Forma Compliance; Financial Ratio Calculations

     59   

1.08

    

Timing of Conditions Related to Limited Condition Transactions

     61   

ARTICLE II THE COMMITMENTS AND CREDIT EXTENSIONS

     62   

2.01

    

The Loans

     62   

2.02

    

Borrowings, Conversions and Continuations of Loans

     62   

2.03

    

Letters of Credit

     64   

2.04

    

Prepayments

     74   

2.05

    

Termination or Reduction of Commitments

     77   

2.06

    

Repayment of Loans

     78   

2.07

    

Interest

     79   

2.08

    

Fees

     80   

2.09

    

Computation of Interest and Fees

     81   

2.10

    

Evidence of Debt

     81   

2.11

    

Payments Generally; Administrative Agent’s Clawback

     82   

2.12

    

Sharing of Payments by Lenders

     84   

2.13

    

Incremental Facilities

     85   

2.14

    

Refinancing Amendments

     91   

2.15

    

Extensions of Loans and Commitments

     93   

2.16

    

Reverse Dutch Auction Repurchases

     96   

2.17

    

Cash Collateral

     98   

2.18

    

Defaulting Lenders

     99   

2.19

    

Additional Borrowers

     101   

ARTICLE III TAXES, YIELD PROTECTION AND ILLEGALITY

     102   

3.01

    

Taxes

     102   

3.02

    

Illegality

     107   

3.03

    

Inability to Determine Rates

     107   

3.04

    

Increased Costs; Reserves on Eurodollar Rate Loans

     108   

3.05

    

Compensation for Losses

     110   

3.06

    

Mitigation Obligations; Replacement of Lenders

     110   

3.07

    

Survival

     111   

ARTICLE IV CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

     111   

4.01

    

Conditions of Initial Credit Extension

     111   

4.02

    

Conditions to all Credit Extensions

     115   

ARTICLE V REPRESENTATIONS AND WARRANTIES

     116   

 

i

TABLE OF CONTENTS

(continued)

 

Section

          Page  

5.01

    

Existence and Qualification; Power; Compliance With Laws

     116   

5.02

    

Authority; Compliance With Other Agreements and Instruments and Government Regulations

     117   

5.03

    

No Governmental Approvals Required

     117   

5.04

    

Subsidiaries

     117   

5.05

    

Financial Statements

     118   

5.06

    

No Other Liabilities

     118   

5.07

    

Litigation

     118   

5.08

    

Binding Obligations

     118   

5.09

    

No Default

     118   

5.10

    

ERISA

     119   

5.11

    

Use of Proceeds; Regulations T, U and X; Investment Company Act

     119   

5.12

    

Disclosure

     119   

5.13

    

Tax Liability

     119   

5.14

    

Projections

     120   

5.15

    

Hazardous Materials

     120   

5.16

    

Solvency

     120   

5.17

    

Material Adverse Effect

     120   

5.18

    

REIT Status

     120   

5.19

    

Ownership of Property; Liens

     120   

5.20

    

Security Interest; Absence of Financing Statements; Etc

     120   

5.21

    

Licenses and Permits

     121   

5.22

    

Subordinated Debt

     121   

5.23

    

Intellectual Property

     121   

5.24

    

Insurance

     122   

5.25

    

Mortgaged Real Property; No Casualty

     122   

5.26

    

Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions

     122   

ARTICLE VI AFFIRMATIVE COVENANTS

     123   

6.01

    

Preservation of Existence

     123   

6.02

    

Maintenance of Properties

     123   

6.03

    

Maintenance of Insurance

     124   

6.04

    

Compliance With Laws

     125   

6.05

    

Inspection Rights; Quarterly Lender Calls

     125   

6.06

    

Keeping of Records and Books of Account

     126   

6.07

    

Use of Proceeds

     126   

6.08

    

Additional Loan Parties

     126   

6.09

    

Collateral Matters; Pledge or Mortgage of Real Property

     127   

6.10

    

Security Interests; Further Assurances

     127   

6.11

    

Limitation on Designations of Unrestricted Subsidiaries

     129   

6.12

    

Taxes

     129   

6.13

    

Compliance with Environmental Law

     130   

6.14

    

Maintenance of REIT Status

     130   

6.15

    

Maintenance of Credit Ratings

     130   

 

ii

TABLE OF CONTENTS

(continued)

 

Section

          Page  

ARTICLE VII INFORMATION AND REPORTING COVENANTS

     131   

7.01

    

Financial Statements, Etc.

     131   

7.02

    

Compliance Certificates

     134   

ARTICLE VIII NEGATIVE COVENANTS

     134   

8.01

    

Mergers, Consolidations and Asset Sales

     134   

8.02

    

Limitation on Lines of Business

     137   

8.03

    

Liens

     137   

8.04

    

Indebtedness

     139   

8.05

    

Payments of Certain Indebtedness

     141   

8.06

    

Investments, Loans and Advances

     142   

8.07

    

Restricted Payments

     145   

8.08

    

Limitation on Certain Restrictions Affecting Subsidiaries

     147   

8.09

    

Transactions with Affiliates

     149   

8.10

    

Limitation on Changes to Fiscal Year

     151   

8.11

    

Financial Covenants

     151   

8.12

    

Master Leases

     151   

8.13

    

Use of Proceeds; Anti-Corruption Law; Sanctions

     152   

8.14

    

Activities of Senior Unsecured Notes Co-Issuer

     152   

ARTICLE IX EVENTS OF DEFAULT AND REMEDIES

     152   

9.01

    

Events of Default

     152   

9.02

    

Remedies upon Event of Default

     155   

9.03

    

Application of Funds

     155   

ARTICLE X ADMINISTRATIVE AGENT

     156   

10.01

    

Appointment and Authority

     156   

10.02

    

Rights as a Lender

     157   

10.03

    

Exculpatory Provisions

     157   

10.04

    

Reliance by Administrative Agent

     158   

10.05

    

Delegation of Duties

     159   

10.06

    

Resignation of Administrative Agent or L/C Issuer

     159   

10.07

    

Non-Reliance on Administrative Agent, Other Lenders and Arrangers

     160   

10.08

    

No Other Duties, Etc.

     161   

10.09

    

Administrative Agent May File Proofs of Claim

     161   

10.10

    

Collateral and Guaranty Matters

     162   

10.11

    

Secured Cash Management Agreements and Secured Hedge Agreements

     164   

ARTICLE XI MISCELLANEOUS

     164   

11.01

    

Amendments, Etc.

     164   

11.02

    

Notices; Effectiveness; Electronic Communications

     167   

11.03

    

No Waiver; Cumulative Remedies; Enforcement

     169   

11.04

    

Expenses; Indemnity; Damage Waiver

     170   

11.05

    

Payments Set Aside

     172   

 

iii

TABLE OF CONTENTS

(continued)

 

Section

          Page  

11.06

    

Successors and Assigns

     173   

11.07

    

Treatment of Certain Information; Confidentiality

     181   

11.08

    

Right of Setoff

     182   

11.09

    

Interest Rate Limitation

     183   

11.10

    

Counterparts; Integration; Effectiveness

     183   

11.11

    

Survival of Representations and Warranties

     184   

11.12

    

Severability

     184   

11.13

    

Replacement of Lenders

     184   

11.14

    

Governing Law; Jurisdiction; Etc.

     186   

11.15

    

Waiver of Jury Trial

     187   

11.16

    

No Advisory or Fiduciary Responsibility

     187   

11.17

    

Electronic Execution of Assignments and Certain Other Documents

     188   

11.18

    

USA PATRIOT Act

     188   

11.19

    

Acknowledgement and Consent to Bail-In of EEA Financial Institutions

     188   

11.20

    

Gaming Law

     189   

11.21

    

Joint and Several Obligations

     189   

11.22

     ENTIRE AGREEMENT      190   

 

SCHEDULES   

 

1.01(a)

  

Mortgaged Real Property

1.01(b)

  

Initial Real Estate Assets

2.01

  

Commitments

2.16

  

Auction Procedures

5.04

  

Subsidiaries

5.24

  

Flood Zone Properties

11.02

  

Notice Addresses

 

EXHIBITS

 

A

  

Form of Committed Loan Notice

B-1

  

Form of Term A Note

B-2

  

Form of Term B Note

B-3

  

Form of Revolving Note

C

  

Form of Compliance Certificate

D-1

  

Form of Administrative Questionnaire

D-2

  

Form of Assignment and Assumption

E

  

Forms of U.S. Tax Compliance Certificate

F

  

Form of Assumption Agreement

G

  

Joint Borrower Provisions

 

iv

CREDIT AGREEMENT

This CREDIT AGREEMENT is entered into as of April 25, 2016, among MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP , a Delaware limited partnership (the “ Borrower ”), each lender from time to time party hereto (collectively, the “ Lenders ” and individually, a “ Lender ”), and BANK OF AMERICA, N.A. , as Administrative Agent and an L/C Issuer. The Parties hereto hereby agree with reference to the following facts:

WHEREAS , the Borrower has requested that the Lenders and the L/C Issuers provide revolving credit and term loan facilities and other financial accommodations to the Borrower for the purposes set forth herein; and

WHEREAS , the Lenders and the L/C Issuers have agreed to provide such revolving credit and term loan facilities and such other financial accommodations to the Borrower on the terms and subject to the conditions set forth herein;

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

ARTICLE I

DEFINITIONS AND ACCOUNTING TERMS

1.01 Defined Terms . As used in this Agreement, the following terms shall have the meanings set forth below:

“ Acceptable Land Use Arrangements ” means the provisions of any easement agreements, street dedications or vacations, entitlements, public and/or private utility easements, licenses, declarations of covenants, conditions and restrictions, and other similar provisions granted by the Borrower or its Subsidiaries which (a) now exist, (b) are permitted to be entered into under the terms of any leases related to the Mortgaged Real Property and which in the aggregate do not materially burden or impair the fair market value or use of such Mortgaged Real Property for the purposes for which it is or may reasonably be expected to be held or (c) which are approved as to their form and substance by the Administrative Agent in writing, such approval not to be unreasonably withheld, conditioned or delayed.

“ Act ” has the meaning specified in Section   11.18 .

“ Adjusted Total Assets ” means, as of any date of determination, Borrower Group EBITDA (calculated excluding clause (ii) of the definition thereof) for the Test Period most recently ended on or prior to such date of determination divided by 8.25% plus (i) in the case of any Development Property or Redevelopment Property (or former Development Property or Redevelopment Property) prior to the date when financial results for at least one complete Fiscal Quarter following completion or opening of the applicable development project are available, 100% of the book value (determined in accordance with GAAP but determined without giving effect to any depreciation) of any such Development Property or Redevelopment Property (or former Development Property or Redevelopment Property) owned or leased under an Eligible Ground Lease by the Borrower Group as of such date of determination, plus (ii) 100% of the book value (determined in accordance with GAAP) of any undeveloped land owned or leased

 

1

under an Eligible Ground Lease by the Borrower Group as of such date of determination, plus (iii) an amount (but not less than zero) equal to all unrestricted cash and Cash Equivalents on hand of the Borrower Group as of such date that is not netted against Indebtedness in the determination of Net Funded Total Indebtedness or Net Funded Senior Secured Indebtedness, as applicable, plus (iv) an amount (but not less than zero) equal to all earnest money deposits associated with potential acquisitions by the Borrower Group as of such date that are not netted against Indebtedness in the determination of Net Funded Total Indebtedness or Net Funded Senior Secured Indebtedness, as applicable, plus (v) the book value (determined in accordance with GAAP) (but determined without giving effect to any depreciation or amortization) of all other Investments (for the avoidance of doubt, other than Income Properties, Development Properties, Redevelopment Properties and unimproved land) held by the Borrower Group as of such date (exclusive of goodwill and other intangible assets); provided that, (1) the Borrower Group EBITDA attributable to any Income Property, Development Property or Redevelopment Property that is leased by the Borrower Group pursuant to a lease that is not an Eligible Ground Lease shall be excluded, (2) the Borrower Group EBITDA attributable to any Development Property, Redevelopment Property or undeveloped land (or former Development Property, Redevelopment Property or undeveloped land) the book value of which is included in Adjusted Total Assets under clause (i) or (ii) above, shall be excluded and (3) the portion of Adjusted Total Assets attributable to any single Income Property shall not exceed 40.0% of Adjusted Total Assets and the portion of Adjusted Total Assets attributable to any single Redevelopment Property, Development Property or undeveloped land shall not exceed 30.0% of Adjusted Total Assets; provided , further that, for purposes of clause (3) of the immediately preceding proviso, (I) the Adjusted Total Assets attributable to any such single Income Property that is listed on Schedule 1.01(b) shall be deemed to be equal to the amount disclosed to the Administrative Agent on the Closing Date, and such amounts shall be subject to increase or decrease by the applicable property’s pro rata share of any increase or decrease in the aggregate Adjusted Total Assets of all properties subject to the Initial Master Lease at any time after the Closing Date (except as provided in the following clause (II)), and (II) if any single Income Property, Redevelopment Property, Development Property or undeveloped land is added to the Initial Master Lease after the Closing Date, the Adjusted Total Assets of such Income Property, Redevelopment Property, Development Property or undeveloped land at the time it is added to the Initial Master Lease shall be an amount equal to the fair market value thereof as reasonably determined by the Borrower in consultation with the Administrative Agent, and, thereafter, such Adjusted Total Assets shall be subject to increase or decrease by its pro rata share of any increase or decrease in the aggregate Adjusted Total Assets of all properties subject to the Initial Master Lease.

“ Administrative Agent ” means Bank of America in its capacity as administrative agent under any of the Loan Documents, or any successor administrative agent.

“ Administrative Agent’s Office ” means the Administrative Agent’s address and, as appropriate, account as set forth on Schedule   11.02 , or such other address or account as the Administrative Agent may from time to time notify to the Borrower and the Lenders.

“ Administrative Questionnaire ” means an Administrative Questionnaire in substantially the form of Exhibit   D-1 or any other form approved by the Administrative Agent.

 

2

“ Affiliate ” means, with respect to any person, any other person that directly or indirectly controls, or is under common control with, or is controlled by, such person. As used in this definition, “control” (including, with its correlative meanings, “controlled by” and “under common control with”) means possession, directly or indirectly, of power to direct or cause the direction of management or policies (whether through ownership of securities or partnership or other ownership interests, by contract or otherwise); provided , that the Creditor Parties and their Affiliates shall not be deemed to be Affiliates of the Borrower or any of its Affiliates solely by virtue of being Creditor Parties.

“ Agent Parties ” means Administrative Agent and its Related Parties.

“ Agreement ” means this Credit Agreement.

“ ALTA ” means American Land Title Association.

“ Anti-Corruption Laws ” means any and all laws or regulations related to corruption or bribery, such as the U.S. Foreign Corrupt Practices Act of 1977, as amended, the Bribery Act 2010 of the United Kingdom and any law or regulation implementing the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions.

“ Applicable Fee Rate ” means, at any time, in respect of the Revolving Facility, (a) from the Closing Date to the date that is six (6) months after the Closing Date, 0.50% per annum and (b) thereafter, the applicable percentage per annum set forth below determined by reference to the Total Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02 :

 

Pricing Level

   Total Net
Leverage Ratio 		   Applicable Fee Rate  

1

   Less than or
equal to 5.00:1.00 		     0.375 % 

2

   Greater than
5.00:1.00 		     0.50 % 

Any increase or decrease in the Applicable Fee Rate resulting from a change in the Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02 ; provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Revolving Lenders, Pricing Level 2 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered. Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Fee Rate for any period shall be subject to the provisions of Section   2.09 .

“ Applicable Percentage ” means, as to each Lender, the percentage (carried out to the ninth decimal place) of the Commitments and Loans under a given Facility held by that Lender. If the commitment of each Revolving Lender to make Revolving Loans and the obligation of

 

3

each L/C Issuer to make L/C Credit Extensions have been terminated pursuant to Section   9.02 , or if the Revolving Commitments have expired, then the Applicable Percentage of each Revolving Lender in respect of the Revolving Facility shall be determined based on the Applicable Percentage of such Revolving Lender in respect of the Revolving Facility most recently in effect, giving effect to any subsequent assignments. The initial Applicable Percentage of each Lender in respect of each Facility is set forth opposite the name of such Lender on Schedule   2.01 or in the Assignment and Assumption pursuant to which such Lender becomes a party hereto, as applicable.

“ Applicable Rate ” means:

(a) in respect of the Revolving Facility and the Term A Facility, (i) from the Closing Date to the date that is six (6) months after the Closing Date, 1.75% per annum for Base Rate Loans and 2.75% per annum for Eurodollar Rate Loans and Letter of Credit Fees and (ii) thereafter, the applicable percentage per annum set forth below determined by reference to the Total Net Leverage Ratio as set forth in the most recent Compliance Certificate received by the Administrative Agent pursuant to Section 7.02 :

 

Applicable Rate

 

Pricing Level

   Total Net Leverage
Ratio 		   Eurodollar Rate +
Letters of Credit 		    Base Rate  

1

   Less than or equal to
5.00:1.00 		     2.25 %      1.25 % 

2

   Greater than 5.00:1.00
and less than or equal
to 5.50:1.00 		     2.50 %      1.50 % 

3

   Greater than 5.50:1.00      2.75 %      1.75 % 

and (b) in respect of the Term B Facility, 2.25% per annum for Base Rate Loans and 3.25% per annum for Eurodollar Rate Loans.

Any increase or decrease in the Applicable Rate resulting from a change in the Total Net Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 7.02 ; provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then, upon the request of the Required Revolving/Term A Lenders, Pricing Level 3 shall apply in respect of the Revolving Facility and the Term A Facility as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until the date on which such Compliance Certificate is delivered. Notwithstanding anything to the contrary contained in this definition, the determination of the Applicable Rate for any period shall be subject to the provisions of Section   2.09 .

“ Applicable Revolving Percentage ” means with respect to any Revolving Lender at any time, such Revolving Lender’s Applicable Percentage in respect of the Revolving Facility at such time.

 

4

“ Appropriate Lender ” means, at any time, (a) with respect to any Facility, a Lender that has a Commitment with respect to such Facility or a Loan thereunder at such time and (b) with respect to the Letter of Credit Sublimit, (i) an L/C Issuer and (ii) if any Letters of Credit have been issued pursuant to Section   2.03(a) , the Revolving Lenders.

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

“ Arrangers ” means, collectively, the Joint Lead Arrangers, the Co-Documentation Agents and the Syndication Agent. The Arrangers are not parties to this Agreement or the other Loan Documents (other than the Fee Letters, to which certain Joint Lead Arrangers are party) in their capacities as Arrangers, and their sole contractual relationship in relation to the Loan Documents is with the Borrower (and not with any other Loan Party).

“ Asset Sale ” means (a) any conveyance, sale, lease, transfer or other disposition (including by way of merger or consolidation and including any sale and leaseback transaction, but excluding any Casualty Event (without giving effect to any materiality thresholds set forth in such definition)) of any Property (including accounts receivable and Equity Interests of any person owned by the Borrower or the Restricted Subsidiaries but not any Debt Issuance), whether owned on the Closing Date or thereafter acquired, by the Borrower or the Restricted Subsidiaries to any Person (excluding operating leases and subleases and similar arrangements of any real or personal property in the ordinary course of business) and (b) any issuance or sale by any Restricted Subsidiary of its Equity Interests to any Person, in the case of clauses (a) and (b) , to the extent that the aggregate value of the interest in such Property conveyed, sold, leased, transferred, or otherwise disposed of or the Equity Interests issued or sold, in each case whether in any single transaction or related series of transactions, is greater than or equal to $100,000,000.

“ Assignee Group ” means two or more Eligible Assignees that are Affiliates of one another or two or more Approved Funds managed by the same investment advisor.

“ Assignment and Assumption ” means an assignment and assumption entered into by a Lender and an Eligible Assignee (with the consent of any party whose consent is required by Section   11.06(b) ), and accepted by the Administrative Agent, in substantially the form of Exhibit   D-2 or any other form approved by the Administrative Agent and the Borrower.

“ Assignment of Rents and Leases ” means that certain assignment of rents and leases dated as of April 25, 2016, by the Initial Landlord in favor of Bank of America, N.A., as Administrative Agent for the Lenders and other Secured Parties described therein.

“ Assumption Agreement ” means each assumption agreement executed by an additional Borrower pursuant to Section 2.19 , substantially in the form of Exhibit F .

“ Attorney Costs ” means all reasonable and documented in reasonable detail fees, expenses and disbursements of any law firm or other external legal counsel.

“ Auction ” has the meaning specified in Section   2.16(a) .

 

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“ Auction Manager ” has the meaning specified in Section   2.16(a) .

“ Auto-Extension Letter of Credit ” has the meaning specified in Section 2.03(b)(iii) .

“ Availability Period ” means (a) in respect of the Closing Date Revolving Facility, the period from and including the Closing Date to the earliest of (i) the Maturity Date for the Closing Date Revolving Facility, (ii) the date of termination of the Revolving Commitments pursuant to Section   2.05 , and (iii) the date of termination of the commitment of each Revolving Lender to make Revolving Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant to Section   9.02 and (b) in respect of any other Class of Revolving Commitments, the period from and including the date such Class of Revolving Commitments is established pursuant to the applicable Extension Amendment, Refinancing Amendment or Incremental Joinder Agreement to the earliest of (i) the maturity date set forth in the applicable Extension Amendment, Refinancing Amendment or Incremental Joinder Agreement, (ii) the date of termination of such Revolving Commitments pursuant to Section 2.05 and (iii) the date of termination of the Revolving Commitment of each Revolving Lender to make Revolving Loans and of the obligation of each L/C Issuer to make L/C Credit Extensions pursuant to Section 9.02 .

“ Available Excluded Contribution Amount ” means, as of any date of determination, the sum, without duplication, of (a) the net cash proceeds of any sale or issuance by the Borrower of its Qualified Equity Interests during the applicable Available Excluded Contribution Amount Period plus (b) the net cash proceeds or fair market value of assets (including cash and Cash Equivalents) (as reasonably determined by the Borrower) contributed to the Borrower as a capital contribution during the applicable Available Excluded Contribution Amount Period, in each case (i) that has been designated by the Borrower after the time of such issuance or contribution for inclusion in the Available Excluded Contribution Amount in the next required Compliance Certificate, (ii) excluding the proceeds of the Initial Public Offering and the OP Units Issuance and (iii) excluding any Permitted Warrant Transaction. The Available Excluded Contribution Amount will be decreased by any amounts thereof (i) used to make Investments pursuant to Section   8.06(l) , (ii) used to prepay, redeem, purchase, defease or satisfy Indebtedness pursuant to Section   8.05(d) and (iii) used to make Restricted Payments pursuant to Section 8.07(f) , in each case, effective immediately upon any such use.

“ Available Excluded Contribution Amount Period ” means, as of any date of determination, the period of twelve (12) months ending on such date (or, if shorter, the period commencing on the day after the Closing Date and ending on such date).

“ Bail-In Action ” means 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 ” means, 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.

“ Bank of America ” means Bank of America, N.A.

 

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“ Base Rate ” means for any day a fluctuating rate per annum equal to the highest of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate”, and (c) the Eurodollar Rate plus 1.00%; provided that when used in connection with the Term B Facility, the Base Rate shall in no event be less than 1.75% per annum. The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such prime rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.

“ Base Rate Loan ” means a Loan that bears interest based on the Base Rate.

“ Borrower ” has the meaning specified in the introductory paragraph hereto.

“ Borrower Group ” means the Borrower and the Restricted Subsidiaries.

“ Borrower Group EBITDA ” means, for any fiscal period, (i) the EBITDA of the Borrower Group for that fiscal period, after eliminating EBITDA of the Borrower Group attributable to Unconsolidated Affiliates plus , (ii) without duplication, the aggregate amount of any recurring or ordinary course cash dividends or other recurring or ordinary cash distributions received by the Borrower Group from Unconsolidated Affiliates, Unrestricted Subsidiaries or from cost method investments (for the avoidance of doubt, a dividend or cash distribution shall be deemed recurring or ordinary course to the extent such distribution was not intended to be a special dividend or distribution).

For purposes of determining Borrower Group EBITDA for any Test Period that includes any period occurring prior to the Closing Date, Borrower Group EBITDA shall be calculated as if the Initial Master Lease had been in effect throughout such period, and the Restructuring and Contribution and the other Transactions occurred at the beginning of such fiscal period, in each case, as reasonably determined by the Borrower in good faith.

“ Borrower Materials ” has the meaning specified in Section   7.01 .

“ Borrower Party ” means the Borrower or any of its Subsidiaries.

“ Borrowing ” means, in respect of any Facility, a borrowing under that Facility.

“ Bridge Credit Agreement ” means that certain credit agreement dated as of the Closing Date, among MGM Resorts, MGM Grand Detroit, LLC, a Delaware limited liability company, Mandalay Corp., a Nevada corporation, Ramparts, Inc., a Nevada corporation, New Castle Corp, a Nevada corporation, Victoria Partners, a Nevada partnership, MGM Resorts Mississippi, Inc., a Mississippi corporation, Bank of America, as administrative agent and the lenders party thereto.

“ Business Day ” means any day other than a Saturday, Sunday or other day on which commercial banks are authorized to close under the Laws of, or are in fact closed in, (i) the State of New York or (ii) the state where the Administrative Agent’s Office is located and, if such day

 

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relates to any Eurodollar Rate Loan, means any such day on which dealings in Dollar deposits are conducted by and between banks in the London interbank eurodollar market.

“ Capital Lease ” as applied to any Person, means 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 , that for the avoidance of doubt, any lease that is accounted for by any Person as an operating lease as of the Closing Date and any Similar Lease entered into after the Closing Date by any Person may, in the sole discretion of the Borrower, be treated as an operating lease and not a Capital Lease; provided , further , that the Initial Master Lease will not be deemed to be a Capital Lease.

“ Cash Collateralize ” means to pledge and deposit with or deliver to the Administrative Agent, for the benefit of one or more of the L/C Issuers and the Lenders, as collateral for L/C Obligations or obligations of Lenders to fund participations in respect thereof, cash or deposit account balances or, if the Administrative Agent and the applicable L/C Issuer shall agree in their sole discretion, other credit support, in each case pursuant to documentation in form and substance satisfactory to (a) the Administrative Agent and (b) the applicable L/C Issuer (as applicable). “ Cash Collateral ” shall have a meaning correlative to the foregoing and shall include the proceeds of such cash collateral and other credit support.

“ Cash Equivalents ” means any of the following types of Investments:

(a) Government Securities due within one year after the date of the making of the Investment;

(b) readily marketable direct obligations of any State of the United States or any political subdivision of any such State or any public agency or instrumentality thereof given on the date of such Investment a credit rating of at least Aa by Moody’s or AA by S&P in each case due within one year from the making of the Investment;

(c) time deposits with, or insured certificates of deposit or bankers’ acceptances of, any commercial bank that (i) is organized under the laws of the United States, any state thereof or the District of Columbia or is the principal banking subsidiary of a bank holding company organized under the laws of the United States, any state thereof or the District of Columbia, and is a member of the Federal Reserve System, (ii) issues (or the parent of which issues) commercial paper rated as described in clause   (g) of this definition and (iii) has combined capital and surplus of at least $1,000,000,000, in each case with maturities of not more than 180 days from the date of acquisition thereof;

(d) certificates of deposit issued by, bank deposits in, eurodollar deposits through, bankers’ acceptances of, and repurchase agreements covering Government Securities executed by any bank incorporated under the Laws of the United States, any State thereof or the District of Columbia and having on the date of such Investment combined capital, surplus and undivided profits of at least $250,000,000, or total assets of at least $5,000,000,000, in each case due within one year after the date of the making of the Investment;

 

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(e) certificates of deposit issued by, bank deposits in, eurodollar deposits through, bankers’ acceptances of, and repurchase agreements covering Government Securities executed by any branch or office located in the United States of a bank incorporated under the Laws of any jurisdiction outside the United States having on the date of such Investment combined capital, surplus and undivided profits of at least $500,000,000, or total assets of at least $15,000,000,000, in each case due within one year after the date of the making of the Investment;

(f) repurchase agreements covering Government Securities executed by a broker or dealer registered under Section 15(b) of the Securities Exchange Act of 1934, as amended, having on the date of the Investment capital of at least $500,000,000, due within 90 days after the date of the making of the Investment; provided that the maker of the Investment receives written confirmation of the transfer to it of record ownership of the Government Securities on the books of a “primary dealer” in such Government Securities or on the books of such registered broker or dealer, as soon as practicable after the making of the Investment;

(g) commercial paper issued by any Person organized under the laws of any state of the United States and rated at least “Prime-1” (or the then equivalent grade) by Moody’s or at least “A-1” (or the then equivalent grade) by S&P, in each case with maturities of not more than 180 days from the date of acquisition thereof;

(h) “money market preferred stock” issued by a corporation incorporated under the Laws of the United States or any State thereof (i) given on the date of such Investment a credit rating of at least Aa by Moody’s and AA by S&P, in each case having an investment period not exceeding 50 days or (ii) to the extent that investors therein have the benefit of a standby letter of credit issued by a Lender or a bank described in clauses   (c) or (d)  above;

(i) a readily redeemable “money market mutual fund” sponsored by a bank described in clause   (d) or (e)  hereof, or a registered broker or dealer described in clause   (f) hereof, that has and maintains an investment policy limiting its investments primarily to instruments of the types described in clauses   (a) through (h)  hereof and given on the date of such Investment a credit rating of at least Aa by Moody’s and AA by S&P;

(j) corporate notes or bonds having an original term to maturity of not more than one year issued by a corporation incorporated under the Laws of the United States or any State thereof, or a participation interest therein; provided that any commercial paper issued by such corporation is given on the date of such Investment a credit rating of at least Aa by Moody’s and AA by S&P; and

(k) Investments, classified in accordance with GAAP as current assets, in money market investment programs registered under the Investment Company Act of 1940, which are administered by financial institutions that have the highest rating obtainable from either Moody’s or S&P, and the portfolios of which are limited solely to Investments of the character, quality and maturity described in clauses   (a) , (c)  and (g)  of this definition.

 

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

“ Cash Management Bank ” means (a) any Person that, at the time it enters into a Cash Management Agreement, is a Lender or an Affiliate of a Lender or the Administrative Agent or an Affiliate of the Administrative Agent, in its capacity as a party to such Cash Management Agreement and (b) any Person that, at the time it, or its Affiliate, became a Lender or the Administrative Agent hereunder, was a party to a Cash Management Agreement.

“ Cash Management Obligations ” means all obligations of any Loan Party under a Cash Management Agreement.

“ Casualty Event ” means any loss of title or any loss of or damage to or destruction of, or any condemnation or other taking (including by any Governmental Authority) of, any Property for which the Borrower or the Restricted Subsidiaries receive cash insurance proceeds or proceeds of a condemnation award or other similar compensation (excluding proceeds of business interruption insurance); provided , no such event shall constitute a “Casualty Event” if such proceeds or other compensation in respect thereof is less than $50,000,000. “Casualty Event” shall include, but not be limited to, any taking of all or any part of any Real Property of the Borrower or the Restricted Subsidiaries or any part thereof, in or by condemnation or other eminent domain proceedings pursuant to any Law, or by reason of the temporary requisition of the use or occupancy of all or any part of any Real Property of the Borrower or the Restricted Subsidiaries or any part thereof by any Governmental Authority.

“ Change in Law ” means the occurrence, after the date of this Agreement, of any of the following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change in any law, rule, regulation or treaty or in the administration, interpretation, implementation or application thereof by any Governmental Authority or (c) the making or implementation of any request, rule, guideline or directive (whether or not having the force of Law) by any Governmental Authority; provided that notwithstanding anything herein to the contrary, (x) the Dodd-Frank Wall Street Reform and Consumer Protection Act and all requests, rules, guidelines or directives thereunder or issued in connection therewith and (y) all requests, rules, guidelines or directives promulgated by the Bank for International Settlements, the Basel Committee on Banking Supervision (or any successor or similar authority) or the United States or foreign regulatory authorities, in each case pursuant to Basel III, shall in each case be deemed to be a “Change in Law,” regardless of the date enacted, adopted or issued.

“ Change of Control ” means an event or series of events by which:

(a) 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, or any Person formed as a holding company for the Company (in a transaction where the voting stock of the Company outstanding prior to such transaction is converted into or exchanged for the voting stock of the surviving or transferee Person constituting all or substantially all of the outstanding shares of such

 

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voting stock of such surviving or transferee Person (immediately after giving effect to such issuance)) and MGM Resorts and its Affiliates)), becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the Exchange Act, except that a Person or group shall be deemed to have “beneficial ownership” of all securities that such Person or group has the right to acquire, whether such right is exercisable immediately or only after the passage of time (such right, an “ option right ”)), directly or indirectly, of more than 35% of the equity securities of Parent entitled to vote for members of the board of directors or equivalent governing body of the Parent on a fully-diluted basis (and taking into account all such securities that such “Person” or “group” has the right to acquire pursuant to any option right); or

(b) Parent (or a Wholly Owned Subsidiary of Parent) shall cease to be the sole general partner of Borrower; or

(c) the Initial Landlord shall not be either (i) a directly or indirectly Wholly Owned Subsidiary of the Borrower or (ii) the Borrower; or

(d) the Initial Landlord shall cease to be the “Landlord” under the Initial Master Lease.

“ Class ” means, when used with respect to Loans or Commitments, each of the following classes of Loans or Commitments: (a) (i) the Closing Date Revolving Commitments and Revolving Loans incurred pursuant to the Closing Date Revolving Commitments and (ii) any Increase Revolving Commitments of the same Class and Revolving Loans incurred thereunder, (b) such other Class of Revolving Loans or Revolving Commitments created pursuant to an Extension Amendment, a Refinancing Amendment or an Incremental Joinder Agreement, (c) Term B Loans or Term B Commitments and any Increase Term Loan Commitments or Increase Term Loans of the same Class, (d) Term A Loans or Term A Commitments and any Increase Term Loan Commitments or Increase Term Loans of the same Class and (e) such other Class of Term Loans or Term Commitments created pursuant to an Extension Amendment, a Refinancing Amendment or an Incremental Joinder Agreement. New Term Loans, Loans under New Revolving Commitments, Extended Term Loans, Loans under Extended Revolving Commitments, Other Term Loans and Loans under Other Revolving Commitments, in each case, that have different terms and conditions shall be construed (together with the Commitments in respect thereof) to be in different Classes.

“ Closing Date ” means the first date all the conditions precedent in Section   4.01 are satisfied or waived in accordance with Section   11.01 .

“ Closing Date Revolving Commitment ” means a Revolving Commitment established on the Closing Date. The Closing Date Revolving Commitments of all of the Revolving Lenders on the Closing Date shall be $600,000,000.

“ Closing Date Revolving Facility ” means the credit facility comprising the Closing Date Revolving Commitments and any Increase Revolving Commitments of the same Class.

“ Co-Documentation Agents ” means, collectively, Bank of America, N.A., Barclays Bank PLC, BNP Paribas Securities Corp., Citigroup Global Markets Inc., Citizens Bank, N.A., Credit

 

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Agricole Corporate and Investment Bank, Deutsche Bank Securities Inc., Fifth Third Bank, Morgan Stanley Senior Funding, Inc., Sumitomo Mitsui Banking Corporation, SunTrust Bank and The Bank of Nova Scotia.

“ Co-Issuer ” means MGP Escrow Co-Issuer, Inc., a Delaware corporation.

“ Code ” means the Internal Revenue Code of 1986, as amended.

“ Collateral ” means, at any date, all of the “Collateral”, “Mortgage Estates” and “Trust Estates” then referred to in the Collateral Documents, including the Mortgaged Real Property.

“ Collateral Documents ” means, collectively, the Security Agreement, the Pledge Agreement, the Mortgages, the Assignment of Rents and Leases and any supplements or other similar agreements delivered to the Administrative Agent pursuant to Section   6.09 and Section 6.10 , and each other agreement, instrument or document that creates, perfects or purports to create or perfect a Lien in favor of the Administrative Agent for the benefit of the Secured Parties.

“ Commitment ” means a commitment to make Loans (and, in the case of the Revolving Facility, to participate in Letters of Credit) under a Facility.

“ Committed Loan Notice ” means a notice of (a) a Term Borrowing, (b) a Revolving Borrowing, (c) a conversion of Loans from one Type to the other, or (d) a continuation of Eurodollar Rate Loans, pursuant to Section   2.02(a) , which, if in writing, shall be substantially in the form of Exhibit A or such other form as may be approved by the Administrative Agent (including any form on an electronic platform or electronic transmission system as shall be approved by the Administrative Agent), completed and signed by a Responsible Officer of the Borrower.

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

“ Competitor ” means a Person or Affiliate of any Person, other than the Borrower, MGM Resorts or their respective Subsidiaries, which is among the top 25 global gaming companies by annual revenues, or any lodging company having any material hotel business in Las Vegas, or any person proposing to build, own or operate a casino resort in any jurisdiction in which the Borrower, MGM Resorts or any of their respective Subsidiaries does any material business or proposes to do business but excluding commercial or corporate banks, and any funds that are managed or controlled by such commercial or corporate banks which funds principally invest in commercial loans or debt securities, in each case designated by written notice to the Administrative Agent and the Lenders (including by posting such notice to the Platform) prior to the Closing Date (or as updated by the Borrower in writing after the Closing Date).

“ Compliance Certificate ” means a certificate substantially in the form of Exhibit   C with such amendments or modifications as may be approved by the Administrative Agent and the Borrower.

 

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“ continuing ” means, with respect to any Default or Event of Default, that such Default or Event of Default has not been cured or waived.

“ Contractual Obligation ” means as to any Person, any provision of any security issued by such Person or of any contractual obligation to which such Person is a party or by which it or any of its Property is bound or subject.

“ Convertible Debt ” means Indebtedness of the Borrower (which may be guaranteed by the Guarantors) permitted to be incurred under the terms of this Agreement that is (i) either (a) convertible into common stock of Parent (and cash in lieu of fractional shares) and/or cash (in an amount determined by reference to the price of such common stock) or (b) sold as units with call options, warrants or rights to purchase (or substantially equivalent derivative transactions) that are exercisable for common stock of Parent and/or cash (in an amount determined by reference to the price of such common stock) and (ii) subordinated to the Obligations on terms customary at the time for convertible subordinated debt securities.

“ Corporate Services Agreement ” means the corporate services agreement among MGM Resorts, Parent and the Borrower entered into on the Closing Date.

“ Credit Agreement Refinancing Indebtedness ” means other Indebtedness incurred pursuant to a Refinancing Amendment (including, without limitation, Other Term 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 or Revolving Commitments, or any then existing Credit Agreement Refinancing Indebtedness (“ Refinanced Debt ”); provided that (i) such Indebtedness has a later maturity and a Weighted Average Life to Maturity equal to or greater than the Refinanced Debt, (ii) such Indebtedness shall not have a greater principal amount than the principal amount of the Refinanced Debt plus accrued interest, fees and premiums (if any) thereon and reasonable fees and expenses associated with the refinancing, (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) the aggregate unused revolving commitments under such Credit Agreement Refinancing Indebtedness shall not exceed the unused Revolving Commitments being replaced, (v) such Credit Agreement Refinancing Indebtedness consisting of Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any optional or mandatory prepayments or prepayment of Term Loans hereunder in each case as specified in the respective Refinancing Amendment and (vi) all other terms and conditions of any such Credit Agreement Refinancing Indebtedness shall be as agreed between the Borrower and the lenders providing any such Credit Agreement Refinancing Indebtedness.

“ Credit Extension ” means each of the following: (a) a Borrowing and (b) an L/C Credit Extension.

“ Creditor Parties ” means each of the Administrative Agent, each L/C Issuer and each Lender, and to the extent relevant, each Cash Management Bank, Hedge Bank and Arranger.

 

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“ Customary Non-Recourse Exclusions ” means usual and customary exceptions and non-recourse carve-outs in nonrecourse debt financings of real property and other carve-outs appropriate in the good faith determination of the Borrower to the financing, including, without limitation, exceptions by reason of (a) any fraudulent misrepresentation made by the Borrower or any of its Restricted Subsidiaries in or pursuant to any document evidencing any Indebtedness, (b) any unlawful act on the part of the Borrower or any of its Restricted Subsidiaries in respect of the Indebtedness or other liabilities of any Restricted Subsidiary of the Borrower, (c) any waste or misappropriation of funds by the Borrower or any of its Restricted Subsidiaries in contravention of the provisions of the Indebtedness or other liabilities of any Restricted Subsidiary, (d) customary environmental indemnities associated with the real property of any Restricted Subsidiary, (e) voluntary bankruptcy, (f) failure of the Borrower or any of its Restricted Subsidiaries to comply with applicable special purpose entity covenants, (g) any failure to maintain insurance required pursuant to any document evidencing any Indebtedness, or (h) any failure to comply with restrictions on the transfer of real property set forth in any document evidencing any Indebtedness, but excluding exceptions by reason of (i) non-payment of the debt incurred in such non-recourse financing (other than usual and customary exceptions in respect of the first debt service payment), or (ii) the failure of the relevant Restricted Subsidiary to comply with financial covenants.

“ Debt Issuance ” means the incurrence by the Borrower or any Restricted Subsidiary of any Indebtedness after the Closing Date (other than as permitted by Section   8.04 ).

“ Debtor Relief Laws ” means the Bankruptcy Code of the United States, 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 jurisdictions from time to time in effect and affecting the rights of creditors generally.

“ Declined Proceeds ” has the meaning specified in Section   2.04(d) .

“ Default ” means any event or condition that constitutes an Event of Default or that, with the giving of any notice, the passage of time, or both, would be an Event of Default.

“ Default Rate ” means (a) when used with respect to Obligations other than Letter of Credit Fees, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Rate, if any, applicable to Base Rate Loans plus (iii) 2% per annum; provided , that with respect to a Eurodollar Rate Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Rate) otherwise applicable to such Loan plus 2% per annum and (b) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Rate plus 2% per annum.

“ Defaulting Lender ” means subject to Section   2.18 , any Lender (a) that has failed to fund any portion of the Loans or participations in L/C Obligations required to be funded by it hereunder within two Business Days of the date required to be funded by it hereunder unless such Lender notifies the Administrative Agent, the applicable L/C Issuer and the Borrower in writing that such failure is the result of such Lender’s determination that one or more conditions precedent to funding (each of which conditions precedent, together with any applicable default,

 

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shall be specifically identified in such writing) has not been satisfied, (b) that has otherwise failed to pay over to the Administrative Agent, any L/C Issuer or any other Lender any other amount required to be paid by it hereunder within two Business Days of the date when due, unless the subject of a good faith dispute, (c) for which the Administrative Agent has received notification that such Lender has, or has a direct or indirect parent company that is (i) 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, (ii) the subject of a bankruptcy, insolvency, reorganization, liquidation or similar proceeding, or a receiver, trustee, conservator, intervenor or sequestrator or the like has been appointed for such Lender or its direct or indirect parent company, or such Lender or its direct or indirect parent company has taken any action in furtherance of or indicating its consent to or acquiescence in any such proceeding or appointment or (iii) become the subject of a Bail-in Action; provided that a Lender shall not be a Defaulting Lender solely by virtue of the ownership or acquisition of any Equity Interest in that Lender or any direct or indirect parent company thereof by a Governmental Authority 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 or instrumentality) to reject, repudiate, disavow or disaffirm any contracts or agreements made with such Lender, (d) that has notified the Borrower, the Administrative Agent or any L/C Issuer, in writing that it does not intend to comply with its funding obligations hereunder, or has made a public statement to that effect (unless such writing or public statement relates to such Lender’s obligation to fund a Loan hereunder and states that such position is based on such Lender’s determination that a condition precedent to funding (which condition precedent, together with the applicable default, if any, shall be specifically identified in such writing or public statement) cannot be satisfied) or (e) that has failed, within three Business Days after written request by the Administrative Agent or the Borrower, to confirm in writing to the Administrative Agent and the Borrower that it will comply with its prospective funding obligations hereunder ( provided that such Lender shall cease to be a Defaulting Lender pursuant to this clause   (e) upon receipt of such written confirmation by the Administrative Agent and the Borrower). Any determination by the Administrative Agent that a Lender is a Defaulting Lender under any one or more of clauses (a) through (e) above, and of the effective date of such status, shall be conclusive and binding absent manifest error, and such Lender shall be deemed to be a Defaulting Lender (subject to Section 2.18(b) ) as of the date established therefor by the Administrative Agent in a written notice of such determination, which shall be delivered by the Administrative Agent to the Borrower, the L/C Issuers and each Lender promptly following such determination.

“ Designated Jurisdiction ” means any country or territory that is the subject of comprehensive Sanctions broadly prohibiting dealings in, with or involving such country or territory.

“ Designation ” has the meaning specified in Section   6.11 .

“ Development Property ” means real property acquired for purposes of becoming, or currently under development into, an Income Property that is owned, operated or leased or otherwise controlled by the Borrower or its Restricted Subsidiaries. Each Development Property shall continue to be classified as a Development Property hereunder until the Borrower notifies

 

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the Administrative Agent that it desires to reclassify such Property as an Income Property for purposes of this Agreement, upon and after which such property shall be classified as an Income Property hereunder.

“ Discharged ” means 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.

“ Disqualified Equity Interest ” means, with respect to any Person, any Equity Interest of such Person that, by its terms (or by the terms of any security into which it is convertible or for which it is exchangeable), or upon the happening of any event, matures (excluding any maturity as the result of an optional redemption by the issuer thereof) or is mandatorily redeemable or redeemable at the sole option of the holder thereof (other than solely for Qualified Equity Interests or upon a sale of assets or a change of control that constitutes an Asset Sale or a Change of Control and is subject to the prior payment in full of the Obligations or as a result of a redemption required by Gaming Law), pursuant to a sinking fund obligation or otherwise (other than solely for Qualified Equity Interests) 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 90 days after the Final Maturity Date then in effect at the time of issuance thereof.

“ Disqualified Lenders ” has the meaning specified in Section 11.06(j)(i) .

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

“ DQ List ” has the meaning specified in Section 11.06(j)(iv) .

“ Drop-Down Transaction ” means an acquisition of Property by the Borrower or any Restricted Subsidiary from MGM Resorts or one of its Subsidiaries in one or a series of related transactions.

“ EBITDA ” means, with respect to any fiscal period and with respect to any Person, the sum of (a) Net Income of such Person for that period, plus (b) any extraordinary loss reflected in such Net Income, and, without duplication, any loss associated with the early retirement of Indebtedness and with any disposition not in the ordinary course of business, minus (c) any extraordinary gain reflected in such Net Income, and, without duplication, any gains associated with the early retirement of Indebtedness and with any disposition not in the ordinary course of business, plus (d) Interest Charges of such Person for that period, plus (e) the aggregate amount of expense for federal, foreign, state and local taxes on or measured by income of such Person for that period (whether or not payable during that period),  minus (f) the aggregate amount of benefit for federal, foreign, state and local taxes on or measured by income of such Person for that period (whether or not receivable during that period), plus (g) depreciation, amortization and all unusual or non-recurring and/or non-cash expenses to the extent deducted in arriving at Net

 

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Income for that period, plus (h) expenses classified as “pre-opening and start-up expenses” on the applicable financial statements of that Person for that fiscal period, plus (i) rental revenues receivable in cash related to any Master Lease and not recognized under GAAP (so long as such amount is actually received for such period), minus (j) rental revenues recognized under GAAP but not currently receivable in cash under any Master Lease, plus (k) non-controlling or minority interest reflected in Net Income, and, without duplication, in each case as determined in accordance with GAAP. For purposes of determining EBITDA for any Test Period that includes any period occurring prior to the Closing Date, EBITDA shall be determined as if the Initial Master Lease has been in effect throughout such period, and the Restructuring and Contribution and the other Transactions occurred at the beginning of such fiscal period, in each case, as reasonably determined by the Borrower in good faith.

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

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

“ EEA Resolution Authority ” means 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 ” means any Person that meets the requirements to be an assignee under Section   11.06(b)(i) , (iii) , (v) and (vi) (subject to such consents, if any, as may be required under Section   11.06(b)(iii) ); provided that no Defaulting Lender shall be an Eligible Assignee for purposes of any assignment in respect of the Revolving Facility or any Term Facility. For the avoidance of doubt, any Disqualified Lender is subject to Section 11.06(j) .

“ Eligible Ground Lease ” means each ground lease with respect to an Income Property, Redevelopment Property, Development Property or undeveloped land executed by the Borrower, or any Restricted Subsidiary, as lessee, that (i) has a remaining lease term (including extension or renewal rights exercisable at the sole option of the tenant thereunder) of at least twenty-five (25) years, calculated as of the date such property becomes included in the calculation of Adjusted Total Assets hereunder, (ii) is free and clear of any Liens (other than Liens permitted by Section 8.03 ) and Negative Pledges and (iii) contains customary financing provisions including, without limitation, notice and cure rights; provided that the MGM National Harbor Hotel and Casino Ground Lease shall be considered an “Eligible Ground Lease” at the time the Borrower or one of its Restricted Subsidiaries acquires the hotel and casino constituting MGM National Harbor.

“ Environment ” means ambient air, surface water and groundwater (including potable water, navigable water and wetlands), the land surface or subsurface strata or natural resources.

 

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“ Environmental Law ” means any and all applicable treaties, Federal, state, local, and foreign laws, statutes, ordinances, regulations, rules, decrees, judgments, directives, orders, consent orders, consent decrees, permits, licenses, and the common law, relating to pollution or protection of public health or the Environment, Hazardous Materials, natural resource damages or occupational safety or health to the extent related to exposure to Hazardous Materials.

“ Environmental Liability ” means any liability, contingent or otherwise (including any liability for damages, costs of environmental remediation, fines, penalties or indemnities), directly or indirectly resulting from or based upon (a) violation of any Environmental Law, (b) the generation, use, handling, transportation, storage, treatment or disposal of any Hazardous Materials, (c) exposure to any Hazardous Materials, (d) the Release or threatened Release of any Hazardous Materials or (e) any contract or agreement pursuant to which liability is assumed or imposed with respect to any of the foregoing.

“ Equity Interests ” means, with respect to any Person, any and all shares, interests, participations or other equivalents, including membership interests (however designated, whether voting or non-voting), of equity of such Person, including, if such Person is a partnership, partnership interests (whether general or limited) and any other interest or participation that confers on a Person the right to receive a share of the profits and losses of, or distributions of assets of, such partnership, whether outstanding on the Closing Date or issued after the Closing Date; provided that Convertible Debt shall not be deemed to be Equity Interests, unless and until any such instruments are so converted or exchanged.

“ ERISA ” means the Employee Retirement Income Security Act of 1974, and any regulations issued pursuant thereto, as amended or replaced and as in effect from time to time.

“ ERISA Affiliate ” means, with respect to any Person, any other Person (or any trade or business, whether or not incorporated) that is under common control with that Person within the meaning of Section 414 of the Code.

“ ERISA Event ” means (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 or 430 of the Code and Section 302 or 303 of ERISA, whether or not waived, the failure by any ERISA Affiliate 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 by the Borrower, the Restricted Subsidiaries or any of their respective ERISA Affiliates 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 the Borrower, the Restricted Subsidiaries or any of their respective ERISA Affiliates of any liability under Title IV of ERISA with respect to the termination of any Pension Plan; (e) the receipt by the Borrower, the Restricted Subsidiaries or any of their respective ERISA Affiliates 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 termination of any Pension Plan

 

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or the incurrence by the Borrower, the Restricted Subsidiaries or any of their respective ERISA Affiliates of any liability with respect to the withdrawal or partial withdrawal from any Pension Plan or Multiemployer Plan; (h) the receipt by the Borrower, the Restricted Subsidiaries or any of their respective ERISA Affiliates of any notice, or the receipt by any Multiemployer Plan from the Borrower, the Restricted Subsidiaries or any of their respective ERISA Affiliates of any notice, concerning the imposition of Withdrawal Liability or a determination that a Multiemployer Plan is, or is expected to be, insolvent or in reorganization, within the meaning of Title IV of ERISA, or in “endangered” or “critical” status, within the meaning of Section 432 of the Code or 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 under ERISA or the Code; (j) the withdrawal of the Borrower, the Restricted Subsidiaries or any of their respective ERISA Affiliates from a Pension Plan subject to Section 4063 of ERISA during a plan year in which such 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 the Borrower or the Restricted Subsidiaries.

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

“ Eurodollar Rate ” means:

(a) for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the London Interbank Offered Rate (“ LIBOR ”) or a comparable or successor rate, which rate is approved by the Administrative Agent, as published on the applicable Bloomberg screen page (or such other commercially available source providing such quotations as may be designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period;

(b) for any interest calculation with respect to a Base Rate Loan on any date, the rate per annum equal to LIBOR, at or about 11:00 a.m., London time determined two Business Days prior to such date for U.S. Dollar deposits with a term of one month commencing that day; and

(c) (i) when used in connection with the Revolving Facility or the Term A Facility, if the Eurodollar Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement and (ii) when used in connection with the Term B Facility, the Eurodollar Rate for any Interest Period shall in no event be less than 0.75% per annum;

provided that to the extent a comparable or successor rate is approved by the Administrative Agent in connection herewith, the approved rate shall be applied in a manner consistent with market practice; provided , further that to the extent such market practice is not administratively feasible for the Administrative Agent, such approved rate

 

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shall be applied in a manner as otherwise reasonably determined by the Administrative Agent.

“ Eurodollar Rate Loan ” means a Revolving Loan or a Term Loan that bears interest at a rate based on clause   (a) of the definition of “Eurodollar Rate.”

“ Event of Default ” has the meaning specified in Section   9.01 .

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

“ Excluded Assets ” means (i) any real property other than the Mortgaged Real Property; (ii) any asset or property (other than those described in clause (vi) below) to the extent the grant of a security interest is prohibited by Law or requires a consent not obtained of any Governmental Authority pursuant to such Law; (iii) (w) Equity Interests in excess of 65% of the voting Equity Interests and 100% of the non-voting Equity Interests of (A) any Foreign Subsidiaries or (B) any FSHCO; (x) Equity Interests of any Subsidiary of a Foreign Subsidiary or FSHCO; (y) Equity Interests of any Joint Venture to the extent such security interest is not permitted under the applicable organizational or joint venture agreement; and (z) Equity Interests in any Unrestricted Subsidiary or any Immaterial Subsidiary; (iv) any lease, license or other agreement or contract (including joint venture agreements) or any property subject to a purchase money security interest or similar arrangement to the extent that a grant of a security interest therein would violate or invalidate such lease, license or agreement or contract or purchase money arrangement or create a right of termination in favor of any other party thereto (other than the Borrower or a Wholly Owned Subsidiary) after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law; (v) assets as to which the Administrative Agent and the Borrower reasonably agree in writing that the cost of obtaining such a security interest or perfection thereof are excessive in relation to the benefit to the Lenders of the security to be afforded thereby; (vi) any governmental licenses or state or local franchises, charters and authorizations (including Gaming Licenses) but only to the extent creation, attachment or perfection of security interests in such licenses, franchises, charters or authorizations are prohibited or restricted by applicable Law or the terms thereof or requires a consent not obtained of any Governmental Authority, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable Law, and other than proceeds and receivables thereof, the assignment of which is expressly deemed effective under the UCC or other applicable Law notwithstanding such prohibition; (vii) any aircraft and assets directly related to the operation thereof and any limited liability company or other special purpose vehicle that has been organized solely to own any aircraft and related assets; (viii) any assets subject to a Capital Lease or to purchase money Indebtedness to the extent that, and for so long as, granting a security interest in such assets would violate the terms of such Capital Lease or such purchase money Indebtedness secured by such assets; (ix) any intent-to-use trademark application prior to the filing of a “Statement of Use” or “Amendment to Allege Use” with respect thereto, to the extent, if any, that, and solely during the period, if any, in which, the grant of a security interest therein would impair the validity or enforceability of such intent-to-use trademark application under applicable federal Law; (x) any Property that is subject to a Lien permitted under Section 8.03(j) to the extent and for so long as the contract or other agreement in which such Lien is granted validly prohibits the creation of any other Lien on such Property after

 

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giving effect to the applicable anti-assignment provisions of the UCC; and (xi) any other assets or property to the extent the grant of a security interest therein would result in material adverse tax consequences to the Borrower or its Subsidiaries as reasonably determined by the Borrower in consultation with the Administrative Agent.

“ Excluded Swap Obligations ” means, with respect to any Guarantor, any obligation (a “ Swap 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, if, and to the extent that, all or a portion of the guarantee of such Guarantor of, or the grant by such Guarantor of a security interest to secure, such Swap Obligation (or any Guaranty Obligation thereof) is or becomes illegal under the Commodity Exchange Act or any rule, regulation or order of the Commodity Futures Trading Commission (or the application or official interpretation of any thereof) by virtue of such Guarantor’s failure for any reason not to constitute an “eligible contract participant” as defined in the Commodity Exchange Act.

“ Excluded Taxes ” means any of the following Taxes imposed on or with respect to a Recipient or required to be withheld or deducted from a payment to a Recipient, (a) Taxes imposed on or measured in whole or in part by net income or overall gross income (however denominated) or franchise Taxes, in each case, (i) imposed as a result of such Recipient being organized under the laws of or “doing business” in, or having its principal office or, in the case of any Lender, its applicable Lending Office located in, the jurisdiction imposing such Tax (or any political subdivision thereof) or (ii) that are Other Connection Taxes, (b) any branch profits Taxes imposed under Section 884(a) of the Code or any similar Tax imposed by any jurisdiction described in clause (a) of this definition, (c) in the case of a Lender, any U.S. federal withholding Taxes 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 Loan or Commitment (other than pursuant to an assignment request by the Borrower under Section 11.13 ) or (ii) such Lender changes its Lending Office, except in each case to the extent that, pursuant to Section 3.01 , amounts with respect to such Taxes were payable either to such Lender’s assignor immediately before such Lender became a party hereto or to such Lender immediately before it changed its Lending Office, (d) Taxes attributable to such Recipient’s failure to comply with Section 3.01(e) and (e) any Taxes imposed under FATCA.

“ Existing Indebtedness ” means Indebtedness outstanding on the Closing Date.

“ Existing Revolving Class ” has the meaning specified in Section   2.15(b) .

“ Existing Revolving Loans ” has the meaning specified in Section   2.15(b) .

“ Existing Term Loan Class ” has the meaning specified in Section   2.15(a) .

“ Extended Loans ” means Extended Revolving Loans or Extended Term Loans.

“ Extended Revolving Commitments ” has the meaning specified in Section   2.15(b) .

“ Extended Revolving Facility ” means a credit facility comprising a series of Extended Revolving Commitments and the corresponding Extended Revolving Loans, if any.

 

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“ Extended Revolving Loans ” has the meaning specified in Section   2.15(b) .

“ Extended Revolving Note ” means any promissory note executed and delivered in connection with any Extended Revolving Commitments and the related Extended Revolving Loans, the form of which shall be specified in the applicable Extension Amendment.

“ Extended Term Facility ” means a credit facility comprising a Class of Extended Term Loans, if any.

“ Extended Term Lender ” means a Lender in respect of Extended Term Loans.

“ Extended Term Loans ” has the meaning specified in Section   2.15(a) .

“ Extended Term Note ” means any promissory note executed and delivered in connection with any Extended Term Loans, the form of which shall be specified in the applicable Extension Amendment.

“ Extending Lender ” has the meaning specified in Section   2.15(c) .

“ Extension Amendment ” has the meaning specified in Section   2.15(d) .

“ Extension Date ” means any date on which any Existing Term Loan Class or any Existing Revolving Class is modified to extend the related scheduled maturity dates in accordance with Section 2.15 (with respect to Lenders under such Existing Term Loan Class or such Existing Revolving Class which agree to such modification).

“ Extension Election ” has the meaning specified in Section   2.15(c) .

“ Extension Request ” means any Term Loan Extension Request or Revolving Extension Request.

“ Extension Series ” means all Extended Term Loans or Extended Revolving Commitments, as applicable, that are established pursuant to the same Extension Amendment (or any subsequent Extension Amendment to the extent such subsequent 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 Series).

“ Facility ” means any Term Facility or any Revolving Facility, as the context may require.

“ FATCA ” means Sections 1471 through 1474 of the Code as of the date of this Agreement (or any amended or successor version that is substantively comparable and not materially more onerous to comply with), any current or future regulations 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 intergovernmental agreement between the United States and any other jurisdiction (and any related treaty, law, regulation or other official guidance) implementing the foregoing.

 

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“ Federal Funds Rate ” means, for any day, the rate per annum equal to the weighted average of the rates on overnight Federal funds transactions with members of the Federal Reserve System arranged by Federal funds brokers on such day, as published by the Federal Reserve Bank of New York on the Business Day next succeeding such day; provided that (a) if such day is not a Business Day, the Federal Funds Rate for such day shall be such rate on such transactions on the next preceding Business Day as so published on the next succeeding Business Day, and (b) if no such rate is so published on such next succeeding Business Day, the Federal Funds Rate for such day shall be the average rate (rounded upward, if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on such day on such transactions as determined by the Administrative Agent. If the Federal Funds Rate shall be less than zero, such rate shall be deemed zero for purposes of this Agreement.

“ Fee Letters ” means, collectively, the Amended and Restated Fee Letter, dated as of April 22, 2016, by and among the Borrower and the Arrangers, the Agency Fee Letter, dated as of April 25, 2016, by and between the Borrower and the Administrative Agent, and each other fee letter entered into with the Administrative Agent or any Arranger from time to time in connection with this Agreement or the Facilities.

“ Final Maturity Date ” means, as of any date of determination, the latest Maturity Date for any of the Facilities or Loans then governed by this Agreement.

“ Financial Covenant Event of Default ” has the meaning specified in Section   9.01(c) .

“ Financial Ratios ” means, collectively, the Total Net Leverage Ratio, the Interest Coverage Ratio, the Total Net Debt to Adjusted Total Assets Ratio and the Senior Secured Net Debt to Adjusted Total Assets Ratio.

“ First Priority ” means, with respect to any Lien purported to be created in any collateral pursuant to any Loan Document, that such Lien is the only Lien to which such collateral is subject, other than any Lien permitted under this Agreement.

“ Fiscal Quarter ” means the fiscal quarter of the Borrower consisting of the three calendar month periods ending on each March 31, June 30, September 30 and December 31.

“ Fiscal Year ” means the fiscal year of the Borrower consisting of the twelve-month period ending on each December 31.

“ Flood Insurance Laws ” means, collectively, (a) the National Flood Insurance Act of 1968 as now or hereafter in effect or any successor statute thereto, (b) the Flood Disaster Protection Act of 1973 as now or hereafter in effect or any successor statue thereto, (c) the National Flood Insurance Reform Act of 1994 as now or hereafter in effect or any successor statute thereto, (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 Lender ” means any Lender that is not a “United States Person” within the meaning of section 7701(a)(30) of the Code.

 

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“ Foreign Subsidiary ” means 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.

“ Fronting Exposure ” means, at any time there is a Defaulting Lender, with respect to an L/C Issuer, such Defaulting Lender’s pro rata portion of the L/C Obligations issued by such L/C Issuer other than such L/C Obligations as to which such Defaulting Lender’s participation obligation has been reallocated to other Lenders or Cash Collateralized in accordance with the terms hereof.

“ FSHCO ” means any Restricted Subsidiary that is organized under the laws of the United States, any state thereof or the District of Columbia and substantially all of whose assets consists of the capital stock of one or more Foreign Subsidiaries.

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

“ Funds From Operations ” means, with respect to the immediately prior Fiscal Quarter or Fiscal Year period, as the case may be, Borrower Group EBITDA minus Interest Charges of such Person for that period; provided, however, for purposes of calculating Funds From Operations, (a) Interest Charges of the Borrower Group related to any amortization of deferred financing costs and original issue discount shall be excluded and (b) Borrower Group EBITDA shall not include any amounts attributable to any period prior to the Closing Date.

“ GAAP ” means generally accepted accounting principles in the United States set forth in the Financial Accounting Standards Board (“ FASB ”) Accounting Standards Codification ® and rules and interpretive releases of the Securities and Exchange Commission under authority of federal securities laws, that are applicable to the circumstances as of the date of determination, consistently applied.

“ Gaming Approval ” means any and all licenses, findings of suitability, approvals, authorizations, permits, consents, rulings, orders or directives of any Governmental Authority (a) necessary to enable Borrower or the Restricted Subsidiaries to engage in the casino, gambling, racing or gaming business, or in the business of owning or leasing real property or vessels used in the casino, gambling, pai gow poker, racing or gaming business or otherwise to continue to conduct its business substantially as is presently conducted or contemplated to be conducted following the Closing Date (after giving effect to the Transactions), (b) required by any Gaming Law or (c) required to accomplish the financing and other transactions contemplated hereby after giving effect to the Transactions.

“ Gaming Authority ” means any governmental agency, authority, board, bureau, commission, department, office or instrumentality with regulatory, licensing or permitting authority or jurisdiction over any gaming business or enterprise or any Gaming Facility or with regulatory, licensing or permitting authority or jurisdiction over any gaming or racing operation (or proposed gaming or racing operation) owned, leased, managed or operated by the Borrower or the Restricted Subsidiaries.

 

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“ Gaming Facility ” means any casino, hotel, resort, race track, off-track wagering site, venue at which gaming or wagering is conducted, and all related or ancillary property and assets.

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

“ Gaming License ” means any Gaming Approval or other casino, gambling, racing or gaming license issued by any Gaming Authority covering any Gaming Facility.

“ Government Securities ” means readily marketable (a) direct full faith and credit obligations of the United States or obligations guaranteed by the full faith and credit of the United States and (b) obligations of an agency or instrumentality of, or corporation owned, controlled or sponsored by, the United States that are generally considered in the securities industry to be implicit obligations of the United States.

“ Governmental Authority ” means any government or political subdivision of the United States or any other country, whether national, federal, state, provincial, local or otherwise, or any agency, authority, board, bureau, central bank, commission, 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 any supra-national bodies such as the European Union or the European Central Bank) including, without limitation, any Gaming Authority.

“ Granting Lender ” has the meaning specified in Section   11.06(h) .

“ Grantor ” means, as of any date of determination, each Loan Party that has granted a Lien to the Administrative Agent for the benefit of the Secured Parties in any of its Property pursuant to any Collateral Document.

“ Guarantors ” means, collectively, each wholly-owned Restricted Subsidiary (other than an Immaterial Subsidiary, any Foreign Subsidiary, any Subsidiary of a Foreign Subsidiary and any FSHCO) of the Borrower that is a party to the Guaranty on the Closing Date and each Restricted Subsidiary that is required to execute and deliver the Guaranty pursuant to Section 6.08 ; provided that such other Subsidiaries that may be formed or acquired after the date hereof that are subject to the jurisdiction of a Gaming Authority that requires approval prior to the execution and delivery of a guaranty shall not be Guarantors unless and until such approval is obtained.

“ Guaranty ” means, collectively, the Guaranty made by the Borrower and the Guarantors in favor of the Secured Parties on the Closing Date together with each guaranty supplement delivered pursuant to Section   6.08 .

 

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“ Guaranty Obligation ” means, as to any Person, any obligation of such Person guaranteeing or intended to guarantee any Indebtedness (“primary obligations”) of any other Person (the “primary obligor”) in any manner, whether directly or indirectly, and any obligation of such Person, whether or not contingent, (i) to purchase any such primary obligation or any property constituting direct or indirect security therefor; (ii) to advance or supply funds (A) for the purchase or payment of any such primary obligation or (B) to maintain working capital or equity capital of the primary obligor or otherwise to maintain the net worth or solvency of the primary obligor; (iii) 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 (iv) otherwise to assure or hold harmless the holder of such primary obligation against loss in respect thereof; provided , that the term Guaranty Obligation shall not include endorsements of instruments for deposit or collection in the ordinary course of business. The amount of any Guaranty Obligation shall be deemed to be an amount equal to the stated or determinable amount of the primary obligation in respect of which such Guaranty 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 Guaranty 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.

“ Hazardous Material ” means any hazardous or toxic 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) listed under any Environmental Law or subject to regulation under Environmental Law.

“ Hedge Bank ” means any Person that, at the time it enters into a Swap Contract, is a Lender or an Affiliate of a Lender or the Administrative Agent or an Affiliate of the Administrative Agent, in its capacity as a party to such Swap Contract.

“ Honor Date ” has the meaning specified in Section   2.03(c)(i) .

“ Immaterial Subsidiary ” means, at any time, any Restricted Subsidiary that, as of the last day of the most recently ended Test Period on or prior to the date of determination, does not have assets (when combined with the assets of all other Immaterial Subsidiaries, after eliminating intercompany obligations) in excess of $50,000,000.

“ Income Property ” means any real property or assets or vessels (including any personal property ancillary thereto or used in connection therewith) owned, operated or leased or otherwise controlled by the Borrower Group and earning, or intended to earn, current income, whether from rent, lease payments, operations or otherwise. “Income Property” shall not include any Development Property, Redevelopment Property or undeveloped land. Each Income Property shall continue to be classified as an Income Property hereunder until the Borrower notifies the Administrative Agent that it desires to reclassify such Property as a Redevelopment Property for purposes of this Agreement, upon and after which such property shall be classified as a Redevelopment Property hereunder.

“ Increase Revolving Commitments ” has the meaning specified in Section 2.13(a)(i) .

 

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“ Increase Term Loan Commitment ” has the meaning specified in Section 2.13(a)(iii) .

“ Increase Term Loans ” has the meaning specified in Section   2.13(a)(iii) .

“ Incremental Commitment ” means any Incremental Revolving Commitment and any Incremental Term Loan Commitment.

“ Incremental Effective Date ” has the meaning specified in Section   2.13(b) .

“ Incremental Joinder Agreement ” has the meaning specified in Section   2.13(b) .

“ Incremental Lender ” has the meaning specified in Section   2.13(a) .

“ Incremental Revolving Commitment ” has the meaning specified in Section 2.13(a)(ii) .

“ Incremental Revolving Lender ” has the meaning set forth in Section 2.13(e) .

“ Incremental Term Loan Commitments ” means, collectively, the Increase Term Loan Commitments and the New Term Loan Commitments.

“ Incremental Term Loan Facility ” means a credit facility comprising a Class of Incremental Term Loan Commitments and Incremental Term Loans, if any.

“ Incremental Term Loans ” means, collectively, the Increase Term Loans and the New Term Loans.

“ Incremental Term Note ” means any promissory note executed and delivered in connection with any Incremental Term Loan Commitments and the related Incremental Term Loans, the form of which shall be specified in the applicable Incremental Joinder Agreement.

“ Indebtedness ” of any Person means, without duplication, (a) all obligations of such Person for borrowed money; (b) all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or similar instruments; (c) all obligations of such Person under conditional sale or other title retention agreements relating to property purchased by such Person; (d) all obligations of such Person issued or assumed as the deferred purchase price of property or services (excluding (x) trade accounts payable and accrued obligations incurred in the ordinary course of business or other accounts payable in the ordinary course of business in accordance with ordinary trade terms, (y) financing of insurance premiums and (z) any earn-out obligation or purchase price adjustment until such obligation becomes a liability on the balance sheet (excluding the footnotes thereto) in accordance with GAAP); (e) all Indebtedness of others to the extent secured by any Lien on property owned or acquired by such Person, whether or not the obligations secured thereby have been assumed; provided , 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 Leases 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) the net amount of the obligations of such Person in respect of interest rate protection agreements, foreign currency exchange agreements or other interest or

 

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exchange rate hedging arrangements (including 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 ten Business Days; and (i) all Guaranty Obligations of such Person in respect of Indebtedness of others of the kinds referred to in clauses   (a) through (h)  above (other than, for the avoidance of doubt, in connection with any completion guarantee); provided that for purposes of this definition, deferred purchase obligations shall be calculated based on the net present value thereof. 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 becomes due, in which case the amount of such Indebtedness shall be the amount due that is payable by such Person. For the avoidance of doubt, it is understood and agreed that (x) any obligations of such Person in respect of Cash Management Agreements and (y) any obligations of such Person in respect of employee deferred compensation and benefit plans shall not constitute Indebtedness. For all purposes hereof, the Indebtedness of the Borrower Group shall exclude (i) any obligations under the Initial Master Lease or any Similar Leases and (ii) intercompany liabilities arising from their cash management, tax, and accounting operations and intercompany loans, advances or Indebtedness having a term not exceeding 364 days (inclusive of any rollover or extensions of terms) and made in the ordinary course of business.

“ Indemnified Taxes ” means (a) Taxes, other than Excluded Taxes, imposed on or with respect to any payment made by or on account of any obligation of any Loan Party under any Loan Document and (b) to the extent not otherwise described in (a), Other Taxes.

“ Indemnitees ” has the meaning specified in Section   11.04(b) .

“ Information ” has the meaning specified in Section   11.07 .

“ Initial Landlord ” means, with respect to the Initial Master Lease, MGP Lessor, LLC, a Delaware limited liability company, in its capacity as landlord under the Initial Master Lease, and its permitted successors or assigns in such capacity.

“ Initial Master Lease ” means the Master Lease between the Initial Landlord and the Tenant entered into on the Closing Date. The Initial Master Lease shall be treated as an operating lease for all purposes hereunder.

“ Initial Master Lease Guaranty ” means the Guaranty of Master Lease by MGM Resorts in favor of the Initial Landlord entered into on the Closing Date.

“ Initial Public Offering ” means Parent’s initial public offering of its Class A limited liability company interests on the Closing Date.

“ Initial Real Estate Assets ” means the Real Properties listed on Schedule 1.01(b) .

 

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“ Intellectual Property ” has the meaning specified in Section   5.23 .

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

“ Interest Coverage Ratio ” means, as of any date of determination, the ratio of (a) Borrower Group EBITDA for the most recently ended Test Period to (b) Interest Charges of the Borrower Group for the most recently ended Test Period; provided , however , for purposes of calculating the Interest Coverage Ratio, Interest Charges of the Borrower Group related to any amortization of deferred financing costs and original issue discount shall be excluded. Notwithstanding the foregoing, for purposes of calculating the Interest Coverage Ratio for any Test Period that includes any period occurring prior to the Closing Date, Borrower Group EBITDA shall be determined as if the Initial Master Lease had been in effect throughout such period, and the Restructuring and Contribution and the other Transactions occurred at the beginning of such fiscal period, in each case, as reasonably determined by the Borrower in good faith.

“ Interest Payment Date ” means, (a) as to any Eurodollar Rate Loan, the last day of each Interest Period applicable to such Loan and the Maturity Date of the Facility under which such Loan was made; provided , that if any Interest Period for a Eurodollar Rate Loan exceeds three months, the respective dates that fall every three months after the beginning of such Interest Period shall also be Interest Payment Dates; and (b) as to any Base Rate Loan, the last Business Day of each March, June, September and December and the Maturity Date of the Facility under which such Loan was made.

“ Interest Period ” means as to each Eurodollar Rate Loan, the period commencing on the date such Eurodollar Rate Loan is disbursed or converted to or continued as a Eurodollar Rate Loan and ending on the date one, two, three or six months thereafter or one week thereafter, as selected by the Borrower in the relevant Committed Loan Notice, or such other period that is twelve months or less requested by the Borrower and consented to by all Appropriate Lenders; provided that:

 

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(a) 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 such Business Day falls in another calendar month, in which case such Interest Period shall end on the next preceding Business Day;

(b) any Interest Period 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

(c) no Interest Period shall extend beyond the Maturity Date of the Facility under which such Loan was made.

“ Interim Assumed Drop-Down Indebtedness ” means any short-term or interim Indebtedness assumed by the Borrower or any Restricted Subsidiary in connection with a Drop-Down Transaction that is intended to be replaced or refinanced within fifteen (15) days of its initial incurrence by the Borrower or such Restricted Subsidiary.

“ Investments ” means (a) any direct or indirect purchase or other acquisition by the Borrower or any of its respective Subsidiaries of, or of a beneficial interest in, any of the Equity Interest of any other Person (other than a Loan Party), or of the assets of a Person that constitute a business unit; (b) any direct or indirect redemption, retirement, purchase or other acquisition for value, by the Borrower or any Subsidiary of the Borrower from any Person, of any Equity Interest of such Person (other than a Loan Party); (c) any direct or indirect loan, advance or capital contribution by the Borrower or any of its respective Subsidiaries to any other Person (other than a Loan Party), including all indebtedness and accounts receivable from that other Person that are not current assets or did not arise from sales to that other Person in the ordinary course of business; (d) the purchase or other acquisition (in one transaction or a series of transactions) of any Real Property (and in the case of a Development Property or a Redevelopment Property, capital expenditures with respect to the development or redevelopment thereof, as the case may be); provided that, in the case of this clause (d), Investments shall not include any single transaction or series of related transactions with an aggregate value of less than $25,000,000; or (e) any payment under any Guaranty Obligation by such Person in respect of Indebtedness or other obligation of any other Person. The amount of any Investment at any time shall be the amount actually invested (measured at the time made) (minus any Returns of the Borrower or a Restricted Subsidiary in respect of such Investment which has actually been received in cash or Cash Equivalents or has been converted into cash or Cash Equivalents), without adjustment for subsequent increases or decreases in the value of such Investment.

“ IP License Agreement ” means the intellectual property license agreement between MGM Resorts and Parent entered into on the Closing Date.

“ IRS ” means the United States Internal Revenue Service.

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

 

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“ Issuer Documents ” means with respect to any Letter of Credit, the Letter of Credit Application, and any other document, agreement and instrument entered into by the applicable L/C Issuer and the Borrower (or any Subsidiary) or in favor of such L/C Issuer and relating to such Letter of Credit.

“ Joint Lead Arrangers ” means, collectively, Bank of America, N.A. (or any other registered broker-dealer wholly-owned by Bank of America Corporation to which all or substantially all of Bank of America Corporation’s or any of its subsidiaries’ investment banking, commercial lending services or related businesses may be transferred following the date of this Agreement), JPMorgan Chase Bank, N.A., Barclays Bank PLC, BNP Paribas Securities Corp., Citigroup Global Markets Inc., Credit Agricole Corporate and Investment Bank, Deutsche Bank Securities Inc., Fifth Third Bank, Morgan Stanley Senior Funding, Inc., Sumitomo Mitsui Banking Corporation and SunTrust Robinson Humphrey, Inc.

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

“ L/C Advance ” means, with respect to each Revolving Lender, such Lender’s funding of its participation in any L/C Borrowing in accordance with its Applicable Revolving Percentage.

“ L/C Borrowing ” means an extension of credit resulting from a drawing under any Letter of Credit which has not been reimbursed on the date when made or refinanced as a Revolving Borrowing. All L/C Borrowings shall be denominated in Dollars.

“ L/C Credit Extension ” means, with respect to any Letter of Credit, the issuance thereof or extension of the expiry date thereof, or the increase of the amount thereof.

“ L/C Issuer ” means Bank of America and each other L/C Issuer designated pursuant to Section   2.03(l) , in each case in its capacity as an issuer of Letters of Credit hereunder, and its successors in such capacity as provided in Section   11.06(a) . An L/C Issuer may, in its discretion, arrange for one or more Letters of Credit to be issued by Affiliates of such L/C Issuer, in which case the term “L/C Issuer” shall include any such Affiliate with respect to Letters of Credit issued by such Affiliate. In the event that there is more than one L/C Issuer at any time, references herein and in the other Loan Documents to the L/C Issuer shall be deemed to refer to the L/C Issuer in respect of the applicable Letter of Credit or to all L/C Issuers, as the context requires.

“ L/C Obligations ” means, as at any date of determination, the aggregate amount available to be drawn under all outstanding Letters of Credit plus the aggregate of all Unreimbursed Amounts, including all L/C Borrowings. For purposes of computing the amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section   1.06 . For all purposes of this Agreement, if on any date of determination a Letter of Credit has expired by its terms but any amount may still be drawn thereunder by reason of the operation of Rule 3.14 of the ISP, such Letter of Credit shall be deemed to be “outstanding” in the amount so remaining available to be drawn.

 

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“ Laws ” means, collectively, all international, foreign, Federal, state and local statutes, treaties, rules, guidelines, regulations, ordinances, codes and administrative or judicial precedents or authorities (including, without limitation, all Gaming Laws, Liquor Laws and Environmental Laws), including the interpretation or administration thereof by any Governmental Authority charged with the enforcement, interpretation or administration thereof, and all applicable administrative orders, directed duties, requests, licenses, authorizations and permits of, and agreements with, any Governmental Authority, in each case whether or not having the force of law.

“ LCT Election ” has the meaning specified in Section 1.08 .

“ LCT Test Date ” has the meaning specified in Section 1.08 .

“ Lender ” has the meaning specified in the introductory paragraph hereto and, as the context requires, includes any Incremental Lender from time to time party hereto pursuant to Section   2.13 and any Person that becomes an Other Revolving Lender or Other Term Lender from time to time party hereto pursuant to Section   2.14.

“ Lending Office ” means, as to any Lender, the office or offices of such Lender described as such in such Lender’s Administrative Questionnaire, or such other office or offices as a Lender may from time to time notify the Borrower and the Administrative Agent.

“ Letter of Credit ” means any standby letter of credit issued hereunder. Letters of Credit shall be issued in Dollars.

“ Letter of Credit Application ” means an application and agreement for the issuance or amendment of a Letter of Credit in the form from time to time in use by the applicable L/C Issuer.

“ Letter of Credit Expiration Date ” means the day that is seven days prior to the Maturity Date then in effect for the Revolving Facility (or, if such day is not a Business Day, the next preceding Business Day).

“ Letter of Credit Fee ” has the meaning specified in Section 2.03(h) .

“ Letter of Credit Sublimit ” means an amount equal to $75,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Revolving Facility.

“ LIBOR ” has the meaning specified in the definition of “Eurodollar Rate.”

“ Lien ” means any mortgage, deed of trust, pledge, hypothecation, assignment for security, security interest, encumbrance or lien of any kind, whether voluntarily incurred or arising by operation of Law or otherwise, affecting any Property, including any agreement to grant any of the foregoing, any conditional sale or other title retention agreement, any lease in the nature of a security interest, and/or the filing of or agreement to give any financing statement (other than a precautionary financing statement with respect to a lease that is not in the nature of a security interest) under the UCC or comparable Law of any jurisdiction with respect to any Property.

 

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“ Limited Condition Transaction ” means any Permitted Acquisition or other Investment permitted hereunder and any related incurrence of Indebtedness by the Borrower or one or more Restricted Subsidiaries whose consummation is not conditioned on the availability of, or on obtaining, third party financing.

“ Liquor Authority ” has the meaning specified in Section   11.20(a) .

“ Liquor Laws ” has the meaning specified in Section   11.20(a) .

“ Loan ” means an extension of credit by a Lender to the Borrower under Article   II in the form of a Term Loan, a Revolving Loan, an Other Revolving Loan or an Extended Revolving Loan.

“ Loan Documents ” means, collectively, this Agreement, the Notes, the Guaranty, the Collateral Documents, the Fee Letters and each Issuer Document.

“ Loan Parties ” means, collectively, the Borrower and each Guarantor.

“ Mandatory Prepayment Date ” has the meaning specified in Section   2.04(d) .

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

“ Master Agreement ” has the meaning specified in the definition of “Swap Contract.”

“ Master Contribution Agreement ” means the master contribution agreement among MGM Resorts, Parent and the Borrower entered into on the Closing Date.

“ Master Lease Guaranty ” means the Initial Master Lease Guaranty and each similar guaranty of a Master Lease entered into after the Closing Date by MGM Resorts or any of its Subsidiaries.

“ Master Leases ” means the Initial Master Lease and each Similar Lease entered into after the Closing Date by Borrower or any of its Restricted Subsidiaries and any other Person (other than a Loan Party).

“ Material Adverse Effect ” means a material adverse effect on (i) the business, assets, properties, or financial condition of the Borrower and its Subsidiaries, taken as a whole; (ii) the ability of the Borrower or any material Guarantor, taken as a whole, to perform its obligations under any Loan Document to which it is a party; or (iii) the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents, taken as a whole.

“ Material Indebtedness ” means any Indebtedness the outstanding principal amount of which is in excess of $75,000,000.

“ Material Subsidiary ” means any Restricted Subsidiary that is not an Immaterial Subsidiary.

 

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“ Maturity Date ” means (a) (i) with respect to the Closing Date Revolving Facility and the Term A Facility, April 25, 2021 or if the maturity is extended pursuant to Section 2.15 , such extended maturity date as determined pursuant to such Section, and (ii) with respect to the Term B Facility, April 25, 2023 or if the maturity is extended pursuant to Section   2.15 , such extended maturity date as determined pursuant to such Section, and (b) with respect to any other Facility, such maturity date as is specified in the relevant Incremental Joinder Agreement, Refinancing Amendment or Extension Amendment or if the maturity is extended pursuant to Section   2.15 , such extended maturity date as determined pursuant to such Section; provided , that, in each case, if such date is not a Business Day, the Maturity Date shall be the next preceding Business Day.

“ Maximum Rate ” has the meaning specified in Section   11.09 .

“ MGM National Harbor ” means the mixed use hotel and casino in National Harbor, Maryland commonly known as MGM National Harbor.

“ MGM National Harbor Hotel and Casino Ground Lease ” means that certain Hotel and Casino Ground Lease, dated as of April 26, 2013 by and between National Harbor Beltway L.L.C., a Virginia limited liability company, as landlord, and MGM National Harbor, LLC, a Nevada limited liability company, as tenant, (i) as amended by the First Amendment to Hotel and Casino Ground Lease, dated as of July 23, 2014, (ii) as amended by the Second Amendment to Hotel and Casino Ground Lease, dated as of November 24, 2015, and (iii) as may be further amended from time to time; provided that any such amendment, taken as a whole, is not adverse to the Lenders in any material respect.

“ MGM Resorts ” means MGM Resorts International, a Delaware corporation.

“ MGM Resorts Material Adverse Effect ” means a material adverse effect on (i) the business, assets, properties, or financial condition of MGM Resorts and its Subsidiaries, taken as a whole; (ii) the ability of the Borrower or any material Guarantor, taken as a whole, to perform its obligations under any Loan Document to which it is a party; or (iii) the rights and remedies of the Administrative Agent or the Lenders under the Loan Documents, taken as a whole.

“ Minimum Collateral Amount ” means, at any time, (i) with respect to Cash Collateral consisting of cash or deposit account balances provided to reduce or eliminate Fronting Exposure during the existence of a Defaulting Lender, an amount equal to 103% of the Fronting Exposure of the L/C Issuer with respect to Letters of Credit issued and outstanding at such time, (ii) with respect to Cash Collateral consisting of cash or deposit account balances provided in accordance with the provisions of Section 2.17(a)(i) , (a)(ii) or (a)(iii) , an amount equal to 103% of the Outstanding Amount of all LC Obligations, and (iii) otherwise, an amount determined by the Administrative Agent and the L/C Issuer in their sole discretion.

“ Moody’s ” means Moody’s Investors Service, Inc. and any successor thereto.

“ Mortgage ” means any deed of trust, trust deed, deed to secure debt, mortgage, preferred ship mortgage, leasehold mortgage or leasehold deed of trust covering Mortgaged Real Property.

“ Mortgaged Real Property ” means (a) each of the fee and leasehold parcels of Real Property or vessels identified on Schedule 1.01(a) and (b) each fee and leasehold parcel of Real

 

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Property or vessels, if any, which shall be required to be subject to a Mortgage delivered after the Closing Date pursuant to Section 6.09 other than any such property subsequently released from the Lien of the Collateral Documents in accordance with the terms of this Agreement.

“ Multiemployer Plan ” means a multiemployer plan within the meaning of Section 3(37) or Section 4001(a)(3) of ERISA (a) to which any ERISA Affiliate is then making or has an obligation to make contributions, (b) to which any ERISA Affiliate has within the preceding six plan years made or had an obligation to make contributions, including any Person which ceased to be an ERISA Affiliate during such six-year period or (c) with respect to which the Borrower or any Restricted Subsidiary is making or has an obligation to make contributions or is reasonably likely to incur liability under Title IV of ERISA.

“ Negative Pledge ” means, with respect to any Person, any agreement, document or instrument that in whole or in part prohibits the creation of any Lien on any assets of such Person (it being understood that, for the avoidance of doubt, (a) a requirement to deliver customary certificates or a subordination and non-disturbance agreement or similar agreement and (b) the consent of the applicable landlord to the extent such consent has been obtained (except for the consent of any landlord under the MGM National Harbor Hotel and Casino Ground Lease), shall not constitute a prohibition); provided , however , that an agreement that conditions such Person’s ability to encumber its assets upon the maintenance of one or more specified ratios (including any financial ratio) or financial tests that limit such Person’s ability to encumber its assets but that do not generally prohibit the encumbrance of its assets or the encumbrance of specific assets shall not constitute a “Negative Pledge” for purposes of this Agreement.

“ Net Available Proceeds ” means:

(a) in the case of any Asset Sale, 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 the Borrower or any Restricted Subsidiary directly or indirectly in connection with such Asset Sale, net (without duplication) of (A) the amount of all fees and expenses and transaction costs paid by or on behalf of the 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 Borrower Party 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 Borrower Party of Indebtedness (other than the Obligations) to the extent that such Indebtedness is secured by a Permitted Encumbrance or any other Lien permitted by Section 8.03 on the subject Property 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 Borrower Party) 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 the Borrower or any of its Restricted Subsidiaries after such Asset Sale and related thereto, including pension and other post-employment benefit liabilities, purchase price adjustments,

 

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liabilities related to environmental matters and liabilities under any indemnification obligations associated with such Asset Sale;

(b) 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) 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 the Borrower or any Restricted Subsidiary in connection with recovery thereof, (B) repayments of Indebtedness (other than Indebtedness hereunder) to the extent that such Indebtedness is secured by a Permitted Encumbrance or any other Lien permitted by Section 8.03 on the subject Property required to be repaid as a result of such Casualty Event, and (C) any Taxes paid or payable by or on behalf of the 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 Borrower Party) owning a beneficial interest in the subject Property; and

(c) in the case of any Debt Issuance or incurrence of any Credit Agreement Refinancing Indebtedness, the aggregate amount of all cash received in respect thereof by the Person consummating such Debt Issuance or incurrence of Credit Agreement Refinancing Indebtedness 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.

“ Net Funded Senior Secured Indebtedness ” means, as of any date of determination, Net Funded Total Indebtedness that is then secured by Liens on the Collateral as of such date (other than any such Net Funded Total Indebtedness that is expressly subordinated in right of payment to the Obligations pursuant to a written agreement).

“ Net Funded Total Indebtedness ” means, as of each date of determination, (a) the sum, without duplication, of the aggregate principal amount of all outstanding Indebtedness of the Borrower Group (other than any such Indebtedness that has been Discharged) of the kind described in clause (a) of the definition of “Indebtedness”, Indebtedness evidenced by promissory notes and similar instruments and Guaranty Obligations in respect of any of the foregoing (to be included only to the extent set forth in clause (ii) below); provided that (i) Net Funded Total Indebtedness shall not include Indebtedness in respect of letters of credit (including Letters of Credit), except to the extent of unreimbursed amounts thereunder and (ii) Net Funded Total Indebtedness shall not include Guaranty Obligations; provided, however, that if and when any such Guaranty Obligation is demanded for payment from the Borrower or any of its Restricted Subsidiaries, then the amounts of such Guaranty Obligations shall be included in such calculations, minus (b) Unrestricted Cash in an amount not to exceed $100,000,000.

“ Net Income ” means, with respect to any fiscal period and with respect to any Person, the net income (or net loss) of that Person for that period, determined in accordance with GAAP.

“ New Financing ” has the meaning specified in Section   2.04(a) .

 

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“ New Revolving Commitment ” has the meaning specified in Section 2.13(a)(ii) .

“ New Term Loan Commitments ” has the meaning specified in Section 2.13(a)(iv) .

“ New Term Loans ” has the meaning specified in Section 2.13(a)(iv) .

“ Non-Compliant Lender ” has the meaning specified in Section   11.13 .

“ Non-Consenting Lender ” has the meaning specified in Section 11.13 .

“ Non-Defaulting Lender ” means, at any time, each Lender that is not a Defaulting Lender at such time.

“ Non-Extension Notice Date ” has the meaning specified in Section   2.03(b)(iii) .

“ Non-Recourse Indebtedness ” means indebtedness for borrowed money of any Person other than a Loan Party with respect to which recourse for payment is limited to specific assets encumbered by a Lien securing such indebtedness; provided , however , such indebtedness may be recourse to (i) the Person or Persons that own the assets encumbered by the Lien securing such indebtedness so long as (x) such Person or Persons do not own any material assets that are not subject to such Lien (other than assets customarily excluded from an all-assets financing), and (y) in the event such Person or Persons directly or indirectly own Equity Interests in any other Person, substantially all assets of such other Person (other than assets customarily excluded from an all-assets financing) are also encumbered by the Lien securing such financing and (ii) the parent entity of the Persons described in clause (i)(x) above so long as such parent entity does not own any material assets other than the Equity Interests in such Persons; provided , further , that personal recourse of a holder of indebtedness against any obligor with respect thereto for Customary Non-Recourse Exclusions shall not, by itself, prevent any indebtedness from being characterized as Non-Recourse Indebtedness.

“ Note ” means a Term A Note, a Term B Note, a Revolving Note, an Incremental Term Note, an Other Term Note, an Other Revolving Note, an Extended Term Note or an Extended Revolving Note, as the context may require.

“ Obligations ” means all advances to, and debts, liabilities, obligations, covenants and duties of, any Loan Party arising under any Loan Document or otherwise with respect to any Loan, Letter of Credit, Secured Cash Management Agreement or Secured Hedge Agreement, in each case whether direct or indirect (including those acquired by assumption), absolute or contingent, due or to become due, now existing or hereafter arising and including interest and fees that accrue after the commencement by or against any Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief Laws naming such Person as the debtor in such proceeding, regardless of whether such interest and fees are allowed claims in such proceeding, provided that the Obligations of a Guarantor shall not include any Excluded Swap Obligations with respect to such Guarantor.

“ Officer’s Certificate ” means, as applied to any entity, a certificate executed on behalf of such entity by its Responsible Officer.

 

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“ OP Units Issuance ” means, collectively, (a) the purchase by Parent of 57,500,000 operating partnership units of the Borrower and (b) the issuance by the Borrower of 158,071,429 of its operating partnership units to MGM Resorts and certain of its Subsidiaries.

“ Operator ” means (a) the lessee of any Income Property owned or leased by the Borrower Group, including, without limitation, the Tenant and (b) the parent company of any such lessee, including, without limitation, the Tenant.

“ Other Connection Taxes ” means, with respect to any Lender, Taxes imposed as a result of a present or former connection between such Lender and the jurisdiction imposing such Tax (other than connections arising solely from such Lender 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 Loan Document, or sold or assigned an interest in any Loan or Loan Document).

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

“ Other Revolving Facility ” means any credit facility comprising a Class of Other Revolving Commitments and Other Revolving Loans, if any.

“ Other Revolving Lender ” means a Lender in respect of Other Revolving Loans.

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

“ Other Revolving Note ” means any promissory note executed and delivered in connection with any Other Revolving Commitments and related Other Revolving Loans, the form of which shall be specified in the applicable Refinancing Amendment.

“ Other Taxes ” means all present or future stamp, court or documentary, intangible, recording, filing or similar Taxes that arise from any payment made under, from the execution, delivery, performance, enforcement or registration of, from the receipt or perfection of a security interest under, or otherwise with respect to, this Agreement or any other Loan Document.

“ Other Term Commitments ” means one or more Classes of Term Commitments hereunder that result from a Refinancing Amendment.

“ Other Term Facility ” means any credit facility comprising a Class of Other Term Commitments and Other Term Loans, if any.

“ Other Term Lender ” means a Lender in respect of Other Term Loans.

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

 

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“ Other Term Note ” means any promissory note executed and delivered in connection with any Other Term Commitments and the related Other Term Loans, the form of which shall be specified in the applicable Refinancing Amendment.

“ Outstanding Amount ” means (a) with respect to one or more Classes of Loans, as the context requires, the aggregate outstanding principal amount thereof after giving effect to any borrowings and prepayments or repayments of such Class(es) occurring on such date; and (b) with respect to any L/C Obligations on any date, the amount of the aggregate outstanding amount of such L/C Obligations on such date after giving effect to any L/C Credit Extension occurring on such date and any other changes in the aggregate amount of the L/C Obligations as of such date, including as a result of any reimbursements by the Borrower of Unreimbursed Amounts.

“ Parent ” means MGM Growth Properties LLC, a Delaware limited liability company.

“ Participant ” has the meaning specified in Section   11.06(d) .

“ Participant Register ” has the meaning specified in Section   11.06(e) .

“ Party ” means any Person other than the Administrative Agent, any Lender or any L/C Issuer which now or hereafter is a party to any of the Loan Documents.

“ PBGC ” means the Pension Benefit Guaranty Corporation.

“ Pension Plan ” means any “employee pension benefit plan”, as such term is defined in Section 3(2) of ERISA (other than a Multiemployer Plan), which is subject to Title IV of ERISA and is maintained by the Borrower, the Restricted Subsidiaries or any of their ERISA Affiliates or to which the Borrower, the Restricted Subsidiaries or any of their ERISA Affiliates contributes or has an obligation to contribute.

“ Permits ” has the meaning specified in Section   5.21 .

“ Permitted Acquisitions ” means any acquisition, whether by purchase, merger, consolidation or otherwise, by the Borrower or the Restricted Subsidiaries of all or substantially all the business, property or assets of, or Equity Interests in, a Person or any division or line of business of a Person or any Joint Venture, or which results in the Borrower owning (directly or indirectly) more than 50% of the Equity Interests in a Person; provided that:

(a) such acquisition shall not have been consummated pursuant to a tender offer that has not been approved by the board of directors (or functional equivalent) of such Person;

(b) subject to Section 1.08 hereof, no Event of Default has occurred and is continuing or would result therefrom;

(c) the Borrower shall be in Pro Forma Compliance with the financial covenants set forth in Section 8.11 (including after giving effect to such acquisition and any Indebtedness and Liens incurred or to be incurred in connection therewith) as of the last

 

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day of the most recent Test Period (regardless of whether the Revolving Facility or the Term A Facility is then in effect); provided that any ratio calculated under this clause (c) shall be calculated subject to Section 1.07 to the extent applicable and, in the case of a Limited Condition Transaction, compliance with the financial covenants set forth in Section 8.11 will be determined in accordance with Section 1.08 ;

(d) with respect to an acquisition for consideration in excess of $100,000,000, the Borrower has delivered to the Administrative Agent an Officer’s Certificate to the effect set forth in clauses (b) and (c) above, together with all relevant financial information for the Person or assets to be acquired;

(e) in the case of a Permitted Acquisition consisting of a purchase or acquisition of the Equity Interests in any Person that does not become a Guarantor hereunder (except to the extent becoming a Guarantor is prohibited by applicable Gaming Laws) or of an acquisition by a Person that is not a Guarantor (and does not become a Guarantor) hereunder (“ Permitted Non-Loan Party Acquisitions ”) (except to the extent becoming a Guarantor is prohibited by applicable Gaming Laws), the consideration paid in all such Permitted Acquisitions shall not exceed an aggregate amount equal to the sum of (i) $75,000,000 during the term of this Agreement plus (ii) the amounts available for Investments set forth in Sections 8.06(l) and 8.06(n) ;

(f) except in the case of a Permitted Non-Loan Party Acquisition, each Person acquired or formed in connection with, or holding the assets acquired pursuant to, such acquisitions shall become a Guarantor in accordance with, Section   6.08 and the Borrower shall have complied with the requirements of Section 6.09 with respect thereto; and

(g) in the event that 30% or more of the consideration paid in a Permitted Acquisition relates to Redevelopment Properties, Development Properties and undeveloped land (as reasonably determined by the Borrower acting in good faith), the portion of such Permitted Acquisition relating to Redevelopment Properties, Development Properties and undeveloped land shall not exceed the sum of (i) the amount available for Investments in such Properties set forth in Section 8.06(i) plus (ii) any amounts available for Investments set forth in Sections 8.06(l) and 8.06(n) .

“ Permitted Bond Hedge Transaction ” means any call or capped call option (or substantively equivalent derivative transaction) on Parent’s common stock purchased by the Borrower in connection with the issuance of any Convertible Debt; provided that the purchase price for such Permitted Bond Hedge Transaction, less the proceeds received by the Borrower from the sale of any related Permitted Warrant Transaction, does not exceed the net proceeds received by the Borrower from the sale of such Convertible Debt issued in connection with the Permitted Bond Hedge Transaction.

“ Permitted Convertible Debt Call Transaction ” means any Permitted Bond Hedge Transaction and any Permitted Warrant Transaction.

“ Permitted Debt Conditions ” means, in respect of any unsecured Indebtedness, that such Indebtedness (i) does not have a stated maturity prior to the date that is 91 days after the Final

 

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Maturity Date in effect at the time of issuance of that Indebtedness (excluding bridge facilities allowing extensions on customary terms to at least 91 days after such Final Maturity Date), (ii) does not have scheduled amortization payments of principal or payments of principal and is not subject to mandatory redemption, repurchase, prepayment or sinking fund obligation (except customary asset sale or change of control provisions that provide for the prior repayment in full of the Loans and all other Obligations and as required by Gaming Laws and in connection with escrowed proceeds or similar special mandatory redemption provisions) (excluding bridge facilities allowing extensions on customary terms to at least 91 days after such Final Maturity Date), in each case prior to the Final Maturity Date then in effect at the time of issuance and (iii) contains (x) covenants and events of default that reflect market terms and conditions at the time of incurrence or issuance of such Indebtedness (as determined in good faith by the Borrower) or (y) terms and conditions not materially less favorable to the Borrower, taken as a whole, than the terms and conditions of such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended (as determined in good faith by the Borrower) (other than any covenants or any other provisions applicable only to periods after the latest Maturity Date as of such date or which are on then current market terms for the applicable type of Indebtedness); it being agreed that covenants substantially similar to those in the Senior Unsecured Note Documents are not materially less favorable to the Borrower than those set forth in this Agreement.

“ Permitted Encumbrances ” means:

(a) inchoate Liens incident to construction on or maintenance of Property; or Liens incident to construction on or maintenance of Property now or hereafter filed or recorded for which adequate reserves have been established in accordance with GAAP (or deposits made pursuant to applicable Law or bonds obtained from reputable insurance companies) and which are being contested in good faith by appropriate proceedings and have not proceeded to judgment; provided that, by reason of nonpayment of the obligations secured by such Liens, no such Property is subject to a material risk of loss or forfeiture;

(b) Liens for Taxes and assessments on Property which are not yet past due; or Liens for Taxes and assessments on Property for which adequate reserves have been set aside and are being contested in good faith by appropriate proceedings and have not proceeded to judgment; provided that, by reason of nonpayment of the obligations secured by such Liens, no such Property is subject to a material risk of loss or forfeiture;

(c) minor defects and irregularities in title to any Property which individually or in the aggregate do not materially impair or burden the fair market value or use of the Property for the purposes for which it is or may reasonably be expected to be held;

(d) easements, exceptions, reservations, or other agreements for the purpose of pipelines, conduits, cables, wire communication lines, power lines and substations, streets, trails, walkways, traffic signals, drainage, irrigation, water, electricity and sewerage purposes, dikes, canals, ditches, the removal of oil, gas, coal, or other minerals, and other like purposes affecting Property, facilities, or equipment which individually or in the aggregate do not materially burden or impair the fair market value or use of such Property for the purposes for which it is or may reasonably be expected to be held;

 

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(e) easements, exceptions, reservations, or other agreements for the purpose of facilitating the joint or common use of Property in or adjacent to a neighboring development, shopping center, utility company, public facility or other projects affecting Property which individually or in the aggregate do not materially burden or impair the fair market value or use of such Property for the purposes for which it is or may reasonably be expected to be held;

(f) rights reserved to or vested in any Governmental Authority to control or regulate, or obligations or duties to any Governmental Authority with respect to, the use or development of any Property;

(g) rights reserved to or vested in any Governmental Authority to control or regulate, or obligations or duties to any Governmental Authority with respect to, any right, power, franchise, grant, license, or permit;

(h) present or future zoning laws and ordinances or other laws and ordinances restricting the occupancy, use, or enjoyment of Property;

(i) statutory Liens, other than those described in clauses   (a) or (b)  above, arising in the ordinary course of business with respect to obligations which are not delinquent or are being contested in good faith; provided that, if delinquent, adequate reserves have been set aside with respect thereto and, by reason of nonpayment, no Property is subject to a material risk of loss or forfeiture;

(j) covenants, conditions, and restrictions affecting the use of Property which individually or in the aggregate do not materially impair or burden the fair market value or use of the Property for the purposes for which it is or may reasonably be expected to be held;

(k) rights of tenants under leases and rental agreements covering Property entered into in the ordinary course of business of the Person owning such Property;

(l) Liens consisting of pledges or deposits to secure obligations under workers’ compensation laws, unemployment insurance and other social security laws or similar legislation, including Liens of judgments thereunder which are not currently dischargeable;

(m) Liens consisting of pledges or deposits of Property to secure performance in connection with operating leases made in the ordinary course of business to which the Borrower or a Restricted Subsidiary is a party as lessee; provided the aggregate value of all such pledges and deposits in connection with any such lease does not at any time exceed 20 % of the annual fixed rentals payable under such lease;

(n) Liens consisting of deposits of Property to secure bids made with respect to, or performance of, contracts (other than contracts creating or evidencing an extension of credit to the depositor);

 

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(o) Liens consisting of any right of offset, or statutory bankers’ lien, on bank deposit accounts maintained in the ordinary course of business so long as such bank deposit accounts are not established or maintained for the purpose of providing such right of offset or bankers’ lien;

(p) Liens consisting of deposits of Property to secure statutory obligations of the Borrower or a Restricted Subsidiary of the Borrower;

(q) Liens consisting of deposits of Property to secure (or in lieu of) surety, appeal or customs bonds in proceedings to which the Borrower or a Restricted Subsidiary is a party;

(r) Liens created by or resulting from any litigation or legal proceeding involving the Borrower or a Restricted Subsidiary in the ordinary course of its business which is currently being contested in good faith by appropriate proceedings, provided that adequate reserves have been set aside by the Borrower or relevant Restricted Subsidiary and no material Property is subject to a material risk of loss or forfeiture;

(s) non-consensual Liens incurred in the ordinary course of business but not in connection with an extension of credit, which do not in the aggregate, when taken together with all other Liens, materially impair the value or use of the Property of the Borrower and the Restricted Subsidiaries, taken as a whole;

(t) Liens arising under applicable Gaming Laws or Liquor Laws;

(u) Liens on each Mortgaged Real Property, which Liens are identified in the title policies delivered on the Closing Date pursuant to Section   4.01(a)(iv) ;

(v) Liens arising out of conditional sale, title retention, consignment or similar arrangements for the sale of goods entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;

(w) Liens arising from precautionary UCC financing statements filings regarding operating leases, consignment of goods or with respect to leases of gaming equipment entered into in the ordinary course of business;

(x) Liens on cash and Cash Equivalents deposited to discharge, redeem or defease Indebtedness;

(y) (i) Liens pursuant to operating leases, licenses or similar arrangements entered into for the purpose of, or with respect to, operating or managing Gaming Facilities, hotels, nightclubs, restaurants and other assets used or useful in the business of the Borrower or its Restricted Subsidiaries, which Liens, operating leases, licenses or similar arrangements are limited to the leased property under the applicable lease and granted to the landlord under such lease for the purpose of securing the obligations of the tenant under such lease to such landlord and (ii) Liens on cash and Cash Equivalents (and on the related escrow accounts or similar accounts, if any) required to be paid to the lessors (or lenders to such lessors) under such leases or maintained in an escrow account

 

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or similar account pending application of such proceeds in accordance with the applicable lease;

(z) licenses, leases or subleases granted to other Persons not materially interfering with the conduct of the business of the Borrower and the Restricted Subsidiaries of the Borrower, taken as a whole; provided that such licenses, leases or subleases are in the ordinary course of business of the Borrower or the Restricted Subsidiaries of the Borrower and the applicable Borrower or Restricted Subsidiary remains the primary operator of such property;

(aa) Liens arising from grants of licenses or sublicenses of Intellectual Property made in the ordinary course of business;

(bb) (i) Liens on capital stock of joint ventures or Unrestricted Subsidiaries securing capital contributions to or obligations of such Persons and (ii) customary rights of first refusal and tag, drag and similar rights in joint venture agreements and agreements with respect to non-Wholly Owned Subsidiaries;

(cc) Liens consisting of any condemnation or eminent domain proceeding or compulsory purchase order affecting real property;

(dd) any interest or title of a lessor, sublessor, licensee or licensor under any lease or license agreement permitted by this Agreement;

(ee) Acceptable Land Use Arrangements, including Liens related thereto;

(ff) Liens for landlord financings (and refinancings thereof) secured by the fee estate of any Eligible Ground Lease; provided that the lender thereunder (or agent on behalf of such lenders) takes subject to an Eligible Ground Lease or has entered into a customary non-disturbance agreement with respect to such Eligible Ground Lease; and

(gg) Liens in favor of the Borrower and the Guarantors on any property which does not then comprise Collateral.

“ Permitted Refinancing ” means any Indebtedness with respect to which the application of proceeds of such Indebtedness is used directly or indirectly to effect the modification, refinancing, replacement, refunding, renewal or extension of existing Indebtedness (as determined by the Borrower in its reasonable discretion) (without for the avoidance of doubt, regard to the maturity date of the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended and without requiring that any such proceeds be used contemporaneously to repay such debt); provided , that (other than with respect to Section 8.04(e) ): (a) any such Indebtedness shall (i) not have a stated maturity or Weighted Average Life to Maturity that is shorter than that of the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended (other than to the extent of nominal amortization for periods where amortization has been eliminated or reduced as a result of prepayments of such Indebtedness) ( provided that the stated maturity or Weighted Average Life to Maturity may be shorter if the stated maturity of any principal payment (including any amortization payments) is not earlier than the earlier of (1) the stated maturity in effect prior to such refinancing or (2) 91 days after the Final Maturity

 

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Date then in effect at the time of issuance) (excluding in the case of this clause (i), bridge facilities allowing extensions on customary terms to at least 91 days after such Final Maturity Date), (ii) if the Indebtedness being refinanced is subordinated 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, (iii) be in a principal amount that does not exceed an amount equal to the sum of the principal amount so refinanced, plus an amount equal to any existing commitments unutilized thereunder, plus accrued interest, plus any premium or other payment required to be paid in connection with such refinancing, plus, in either case, the amount of fees and expenses of the Borrower Group incurred in connection with such refinancing, plus any additional amounts permitted to be incurred pursuant to Section 8.04 (so long as such additional Indebtedness meets the other applicable requirements of this definition and, if secured, Section 8.03 ) and (iv) in the case of the modification, refinancing, replacement, refunding, renewal or extension of any unsecured Indebtedness, the Permitted Debt Conditions are satisfied; and (b) the sole obligor on such Indebtedness shall be the Borrower or the original obligor on such Indebtedness being modified, refinanced, replaced, refunded, renewed or extended; provided , that (i) any guarantor of the Indebtedness being modified, refinanced, replaced, refunded, renewed or extended shall be permitted to guarantee the refinancing Indebtedness (subject to receipt of any required approvals from any Gaming Authority) and (ii) any Loan Party shall be permitted to guarantee any such Indebtedness of any other Loan Party.

“ Permitted Replacement Lease ” means (a) any new lease entered into pursuant to Section 1.05 of the Initial Master Lease or the corresponding section of any other Master Lease, (b) any new lease entered into with a Qualified Successor Tenant or (c) any assignment of a Master Lease to a Qualified Successor Tenant, in each case, whether in respect of all or a portion of the Gaming Facilities (or Related Business) subject to such Master Lease; provided , that no Permitted Replacement Lease may contain terms and provisions that would have been prohibited by Section 8.12(a) if such terms and provisions had been effected pursuant to an amendment or modification of such Master Lease.

“ Permitted Sale Leaseback ” means any Sale Leaseback consummated by the Borrower or any of the Restricted Subsidiaries pursuant to Section 8.01(o) ; provided , that no Real Property shall be subject to any such Sale Leaseback.

“ Permitted Warrant Transaction ” means any call option, warrant or right to purchase (or substantively equivalent derivative transaction) on Parent’s common stock sold by the Borrower substantially concurrently with any purchase by the Borrower of a related Permitted Bond Hedge Transaction.

“ Person ” means any natural Person, corporation, limited liability company, trust, joint venture, association, company, partnership, Governmental Authority or other entity.

“ Plan of Reorganization ” has the meaning specified in Section 11.06(j)(iii) .

“ Platform ” has the meaning specified in Section 7.01 .

“ Pledge Agreement ” has the meaning specified in Section   4.01(a)(iii) .

 

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“ Post-Refinancing Revolving Lenders ” has the meaning specified in Section 2.14(d) .

“ Pre-Refinancing Revolving Lenders ” has the meaning specified in Section 2.14(d) .

“ Prepayment Restricted Indebtedness ” means any series, class or issue of Indebtedness (i) that is subordinated in right of payment to the Obligations or that is secured by a Lien that is junior in priority to the Liens securing the Obligations and (ii) the original aggregate principal amount of which is in excess of $100,000,000 on the date of issuance thereof.

“ Pro Forma Basis ” or “ Pro Forma Compliance ” means, 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 in accordance with Section 1.07 .

“ Projections ” has the meaning specified in Section   5.14 .

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

“ Property Holdco ” has the meaning specified in the definition of “Reorganization and Contribution”.

“ Public Lender ” has the meaning specified in Section   7.01 .

“ Qualified Equity Interest ” means, with respect to any Person, any Equity Interests of such Person that are not Disqualified Equity Interests.

“ Qualified Successor Tenant ” means a Person that: (a) in the reasonable judgment of the Borrower, has sufficient experience (directly or through one or more of its Subsidiaries) operating or managing casinos (or the applicable Related Business) or is owned, controlled or managed by a Person with such experience, to operate properties subject to a Permitted Replacement Lease and (b) to the extent applicable, is licensed or certified by each Gaming Authority with jurisdiction over any Gaming Facility subject to the applicable Permitted Replacement Lease as of the initial date of the effectiveness of the applicable Permitted Replacement Lease.

“ Real Property ” means (i) each parcel of real property leased or operated by the Borrower or the Restricted Subsidiaries, whether by lease, license or other use or occupancy agreement, and (ii) each parcel of real property owned by the Borrower or the Restricted Subsidiaries, together with all buildings, structures, improvements and fixtures located thereon, together with all easements, licenses, rights, privileges, appurtenances, interests and entitlements related thereto.

“ Recipient ” means (a) the Administrative Agent, (b) any Lender or (c) any L/C Issuer, as applicable.

 

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“ Recourse Indebtedness ” means, with respect to the Borrower or any Restricted Subsidiary, all Indebtedness of the Borrower or such Restricted Subsidiary other than Non-Recourse Indebtedness.

“ Redevelopment Property ” means any real property that operates or is intended to operate as an Income Property (a) that is designated by the Borrower in a notice to the Administrative Agent as a “Redevelopment Property”, (b) (i) (X) that has been acquired by the Borrower Group with a view toward renovating or rehabilitating such real property at an aggregate anticipated cost of at least 10% of the acquisition cost thereof and such renovation or rehabilitation is expected to disrupt the occupancy of at least 30% of the square footage of such property or (Y) that the Borrower Group intends to renovate or rehabilitate at an aggregate anticipated cost in excess of 10% of the Adjusted Total Assets consisting of or related to such real property immediately prior to such renovation or rehabilitation and such renovation or rehabilitation is expected to temporarily reduce the EBITDA attributable to such property by at least 30% as compared to the immediately preceding comparable prior period and (ii) with respect to which the Borrower Group thereof has entered into a binding construction contract or construction has commenced and (c) that does not qualify as a “Development Property”. Each Redevelopment Property shall continue to be classified as a Redevelopment Property hereunder until the Borrower notifies the Administrative Agent that it desires to reclassify such Property as an Income Property for purposes of this Agreement, upon and after which such property shall be classified as an Income Property hereunder.

“ Reduction Amount ” has the meaning set forth in Section   2.04(b)(vi) .

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

“ Refinancing Amendment ” means an amendment to this Agreement reasonably satisfactory to the Administrative Agent and the Borrower executed by each of (a) the Borrower, (b) the Administrative Agent and (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   2.14 .

“ Register ” has the meaning specified in Section   11.06(c) .

“ Registration Rights Agreement ” means the registration rights agreement between the Borrower and certain of its existing and future subsidiaries, MGM Escrow Issuer, LLC and certain financial institutions party thereto.

“ Regulations   T, U and X ” means Regulation T (12 C.F.R. Part 220), Regulation U (12 C.F.R. Part 221) and Regulation X (12 C.F.R. Part 224), respectively, of the Board of Governors of the Federal Reserve System of the United States (or any successor), as the same may be amended, modified or supplemented and in effect from time to time and all official rulings and interpretations thereunder or thereof.

 

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“ REIT ” means a “real estate investment trust” under Sections 856 through 860 of the Code.

“ Rejection Notice ” has the meaning specified in Section   2.04(d) .

“ Related Businesses ” means the development, ownership, leasing or operation of Gaming Facilities, hotel facilities, retail facilities and entertainment facilities related or ancillary to Gaming Facilities, hotel facilities, retail facilities, entertainment facilities and land held for potential development or under development as Gaming Facilities, hotel facilities, retail facilities and entertainment facilities (including related or ancillary uses and including Investments in any such Related Businesses or assets related thereto).

“ Related Indemnified Person ” of an Indemnitee means (a) any controlling Person or controlled Affiliate of such Indemnitee, (b) the respective directors, officers, or employees of such Indemnitee or any of its controlling Persons or controlled Affiliates and (c) the respective agents of such Indemnitee or any of its controlling Persons or controlled Affiliates, in the case of this clause   (c) , acting at the instructions of such Indemnitee, controlling Person or such controlled Affiliate; provided that each reference to a controlled Affiliate or controlling Person in this definition shall be limited to a controlled Affiliate or controlling Person involved in the negotiation or syndication of the Facilities.

“ Related Parties ” means, with respect to any Person, that Person, its Affiliates and their respective partners, directors, officers, employees, agents, trustees and advisors.

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

“ Removal Effective Date ” has the meaning specified in Section 10.06(b) .

“ Reorganization and Contribution ” means (i) the transfer by Subsidiaries of MGM Resorts of the Initial Real Estate Assets to newly formed property company Subsidiaries indirectly controlled by MGM Resorts (each, a “ Property Holdco ”); (ii) the transfer by MGM Resorts or certain Subsidiaries of MGM Resorts, as applicable, of 100% of the ownership interest in the Property Holdcos to the Borrower; (iii) the contribution by the Borrower of the Equity Interests in the Property Holdcos to a Restricted Subsidiary of the Borrower and subsequent merger of the Property Holdcos into the Initial Landlord; and (iv) the transactions related thereto.

“ Repricing Event ” means (i) any optional prepayment or repayment of Term B Loans with the proceeds of, or any conversion of Term B Loans into, any new or replacement tranche of term loans bearing interest at an “effective” interest rate (taking into account, for example, upfront fees, interest rate spreads, interest rate benchmark floors and original issue discount) less than the “effective” interest rate applicable to the Term B Loans and (ii) an assignment by a Lender of a Term B Loan pursuant to Section   11.13 as a result of its failure to consent to an amendment that would, directly or indirectly, reduce the “effective” interest rate applicable to the Term B Loans (in each case, with original issue discount and upfront fees, which shall be deemed to constitute like amounts of original issue discount, being equated to interest margins in

 

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a manner consistent with generally accepted financial practice based on an assumed four-year life to maturity) then in effect, in each case, to the extent the primary purpose of such transaction is to obtain a lower “effective” interest rate and, in each case, other than in connection with a Change of Control or a Permitted Acquisition (as certified by a Responsible Officer of the Borrower).

“ Request for Credit Extension ” means (a) with respect to a Borrowing, conversion or continuation of Loans, a Committed Loan Notice, and (b) with respect to an L/C Credit Extension, a Letter of Credit Application.

“ Required Facility Lenders ” means, at any time, (a) with respect to any Term Facility, Lenders holding more than 50% of the Outstanding Amount of the Term Loans under such Facility on such date; provided , that the portion of such Term Loans held by any Defaulting Lender shall be disregarded in making the determination of Required Facility Lenders for such purpose and (b) with respect to any Revolving Facility, the Required Revolving Lenders under such Facility.

“ Required Lenders ” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Lender for purposes of this definition) and (b) aggregate unused Revolving Commitments; provided that Commitments of, and the Obligations held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.

“ Required Revolving Lenders ” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Revolving Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Lender for purposes of this definition) and (b) aggregate unused Revolving Commitments; provided that the unused Revolving Commitment of, and the portion of the Total Revolving Outstandings held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving Lenders.

“ Required Revolving/Term A Lenders ” means, as of any date of determination, Lenders holding more than 50% of the sum of the (a) Total Revolving Outstandings (with the aggregate amount of each Revolving Lender’s risk participation and funded participation in L/C Obligations being deemed “held” by such Revolving Lender for purposes of this definition), (b) aggregate unused Revolving Commitments and (c) the Term A Facility and Incremental Term Loans of such Class on such date; provided that the unused Revolving Commitment of, and the portion of the Total Revolving Outstandings and the portion of the Term A Facility and Incremental Term Loans of such Class held or deemed held by, any Defaulting Lender shall be excluded for purposes of making a determination of Required Revolving/Term A Lenders.

“ Requirement of Law ” means, 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.

 

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“ Resignation Effective Date ” has the meaning specified in Section 10.06(a) .

“ Responsible Officer ” means the Borrower’s or other Loan Party’s chief executive officer, chief operating officer, treasurer, assistant treasurer, secretary, assistant secretary, executive vice presidents and senior vice presidents and, regardless of designation, the chief financial officer of the Borrower; provided that the Borrower may designate one or more other officers as Responsible Officers for the purpose of executing requests for credit extensions under this Agreement by delivery of an incumbency certificate to the Administrative Agent. Any document delivered hereunder that is signed by a Responsible Officer on behalf of a Loan Party shall be conclusively presumed to have been authorized by all necessary corporate, partnership and other action, as applicable, on the part of such Loan Party and such Responsible Officer shall be conclusively presumed to have acted on behalf of such Loan Party.

“ Restricted Payment ” means any dividend or other distribution (whether in cash, securities or other property) with respect to any capital stock or other Equity Interest of any Person or any of its Subsidiaries, or any payment (whether in cash, securities or other property), including any sinking fund or similar deposit, on account of the purchase, redemption, retirement, defeasance, acquisition, cancellation or termination of any such capital stock or other Equity Interest, or on account of any return of capital to the holders of Equity Interests in such Person; provided that (i) the exercise by the Borrower of rights under derivative securities linked to Equity Interests underlying Convertible Debt or similar products purchased by the Borrower in connection with the issuance of such Convertible Debt and (ii) any termination fees or similar payments in connection with the termination of warrants or other Equity Interests issued in connection with such Convertible Debt shall not be considered to be a “Restricted Payment.”

“ Restricted Subsidiaries ” means all existing and future Subsidiaries of the Borrower other than the Unrestricted Subsidiaries.

“ Returns ” means, with respect to any Investment, any dividends, distributions, interest, fees, premium, return of capital, repayment of principal, income, profits (from a disposition or otherwise) and other amounts received or realized in respect of such Investment.

“ Revocation ” has the meaning specified in Section   6.11 .

“ Revolving Borrowing ” means a borrowing consisting of simultaneous Revolving Loans of the same Type and Class and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Appropriate Lenders.

“ Revolving Class Exposure ” means, as to any Revolving Lender and Class of Revolving Commitments at any time, (i) the Outstanding Amount at such time of such Lender’s Revolving Loans of such Class, plus (ii) the Outstanding Amount of such Lender’s participation in L/C Obligations under such Class, in each case, at such time.

“ Revolving Commitment ” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrower pursuant to Section   2.01(c) , and (b) purchase participations in L/C Obligations, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule   2.01 under the caption “Revolving Commitment” or opposite such caption in the Assignment and Assumption pursuant to which

 

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such Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement; it being understood that a Lender’s Revolving Commitment shall include any Incremental Revolving Commitments, any Extended Revolving Commitments and any Other Revolving Commitments of such Lender.

“ Revolving Exposure ” means, as to any Revolving Lender at any time, (i) the Outstanding Amount at such time of such Lender’s Revolving Loans, plus (ii) the Outstanding Amount of such Lender’s participation in L/C Obligations, in each case, at such time.

“ Revolving Extension Request ” has the meaning specified in Section   2.15(b) .

“ Revolving Facility ” means, collectively, the Closing Date Revolving Facility, each credit facility comprising a Class of Extended Revolving Commitments, if any, and each credit facility comprising a Class of New Revolving Commitments, if any, and each credit facility comprising a Class of Other Revolving Commitments, if any.

“ Revolving Lender ” means, at any time, any Lender that has a Revolving Commitment at such time.

“ Revolving Loan ” has the meaning specified in Section   2.01(c) .

“ Revolving Note ” means a promissory note made by the Borrower in favor of a Revolving Lender evidencing Revolving Loans made by such Revolving Lender, substantially in the form of Exhibit   B-3 .

“ S&P ” means Standard & Poor’s Financial Services LLC, a subsidiary of The McGraw-Hill Companies, Inc., and any successor thereto.

“ Sale Leaseback ” means any transaction or series of related transactions pursuant to which the Borrower or any of the Restricted Subsidiaries (a) sells, transfers or otherwise disposes of any property, real or personal, whether now owned or hereafter acquired, and (b) as part of such transaction, thereafter rents or leases such property or other property that it intends to use for substantially the same purpose or purposes as the property being sold, transferred or disposed of.

“ Sanction(s) ” means any economic sanctions administered or enforced by any Sanctions Authority.

“ Sanctioned Person ” means, at any time, (a) any Person listed in any Sanctions-related list of designated Persons maintained by any Sanctions Authority, (b) any Person organized or resident in a Designated Jurisdiction or (c) any Person 50% or more owned or controlled by any such Person described in clause (a) or (b) above.

“ Sanctions Authority ” means the United States (including, without limitation, the Office of Foreign Assets Control of the U.S. Department of the Treasury), the United Nations Security Council, the European Union, the United Kingdom (including, without limitation, Her Majesty’s Treasury) or any other relevant sanctions authority with jurisdiction over the Borrower.

 

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“ SEC ” means the Securities and Exchange Commission, or any Governmental Authority succeeding to any of its principal functions.

“ Secured Cash Management Agreement ” means any Cash Management Agreement that is entered into by and between a Loan Party and any Cash Management Bank.

“ Secured Hedge Agreement ” means any Swap Contract permitted under Article   VIII that is entered into by and between a Loan Party and any Hedge Bank.

“ Secured Parties ” means, collectively, the Administrative Agent, the Lenders, the L/C Issuers, the Hedge Banks, the Cash Management Banks, each co-agent or sub-agent appointed by the Administrative Agent from time to time pursuant to Section   10.05 , and the other Persons the Obligations owing to which are or are purported to be secured by the Collateral under the terms of the Collateral Documents.

“ Security Agreement ” has the meaning specified in Section   4.01(a)(iii) .

“ Senior Secured Net Debt to Adjusted Total Assets Ratio ” means, as of any date of determination, the ratio of (a) the outstanding principal amount of Net Funded Senior Secured Indebtedness to (b) Adjusted Total Assets, in each case, as of such date of determination.

“ Senior Unsecured Note Documents ” means the Indenture governing the Senior Unsecured Notes, the Senior Unsecured Notes and all other agreements, instruments and other documents pursuant to which the Senior Unsecured Notes have been or will be issued or otherwise setting forth the terms of the Senior Unsecured Notes.

“ Senior Unsecured Notes ” means the 5.625% senior unsecured notes of the Borrower due 2024 in an aggregate principal amount of $1,050,000,000 issued on the Closing Date pursuant to the Senior Unsecured Note Documents.

“ Significant Acquisition ” means an acquisition permitted under Section 8.06 ; provided that the aggregate consideration (whether in the form of cash, securities, goodwill, or otherwise) with respect to such acquisition is not less than 5.0% of Adjusted Total Assets.

“ Significant Acquisition Period ” means the Fiscal Quarter in which a Significant Acquisition is consummated and the three consecutive Fiscal Quarters immediately succeeding such Fiscal Quarter.

“ Similar Lease ” means a lease that (x) reflects commercially reasonable terms at the time entered into (as determined in good faith by the Borrower) and (y) is entered into by the Borrower or a Restricted Subsidiary with MGM Resorts or its Subsidiaries or with another Person (other than a Loan Party), for the purpose of, or with respect to operating or managing Gaming Facilities, Related Businesses, lodging, leisure and entertainment-related Real Property assets of the Borrower or a Restricted Subsidiary.

“ Solvent ” and “ Solvency ” means, 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

 

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

“ SPC ” has the meaning specified in Section   11.06(h) .

“ SPC Register ” has the meaning specified in Section   11.06(i) .

“ Specified Transaction ” means (a) any incurrence or repayment of Indebtedness (other than for working capital purposes or under any revolving facility), (b) any Investment that results in a Person becoming a Restricted Subsidiary of the Borrower, (c) any acquisition that results in a Person becoming a Restricted Subsidiary of the Borrower, (d) any disposition that results in a Restricted Subsidiary ceasing to be a Restricted Subsidiary of the Borrower, (e) any acquisition of assets constituting a business unit, line of business or division of another Person or constituting an Investment (other than intercompany Indebtedness or Investments in cash and cash equivalents) or an acquisition of Real Property or interests in Real Property, in each case under this clause (e), with a fair market value of at least $10,000,000 or constituting all or substantially all of the assets of a Person and (f) any disposition permitted under Section 8.01 of (i) Real Property or interests in Real Property with a fair market value of at least $10,000,000, a business unit, line of business or division of the Borrower or any of its Restricted Subsidiaries or (ii) a Restricted Subsidiary or all or substantially all of the assets of a Restricted Subsidiary, in each case whether by merger, consolidation, amalgamation or otherwise.

“ Subsidiary ” of a Person means a corporation, partnership, joint venture, limited liability company or other business entity of which a majority of the shares of securities or other interests having ordinary voting power for the election of directors or other governing body (other than securities or interests having such power only by reason of the happening of a contingency) are at the time beneficially owned, or the management of which is otherwise controlled, directly, or indirectly through one or more intermediaries, or both, by such Person. Unless otherwise specified, all references herein to a “ Subsidiary ” or to “ Subsidiaries ” shall refer to a Subsidiary or Subsidiaries of the Borrower.

“ Swap Contract ” means (a) any and all rate swap transactions, basis swaps, credit derivative transactions, forward rate transactions, commodity swaps, commodity options, forward commodity contracts, equity or equity index swaps or options, bond or bond price or bond index swaps or options or forward bond or forward bond price or forward bond index transactions, interest rate options, forward foreign exchange transactions, cap transactions, floor transactions, collar transactions, currency swap transactions, cross-currency rate swap transactions, currency options, spot contracts, or any other similar transactions or any combination of any of the foregoing (including any options to enter into any of the foregoing),

 

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whether or not any such transaction is governed by or subject to any master agreement, and (b) any and all transactions of any kind, and the related confirmations, which are subject to the terms and conditions of, or governed by, any form of master agreement published by the International Swaps and Derivatives Association, Inc., any International Foreign Exchange Master Agreement, or any other master agreement (any such master agreement, together with any related schedules, a “ Master Agreement ”), including any such obligations or liabilities under any Master Agreement. For the avoidance of doubt, any Permitted Convertible Debt Call Transaction will not constitute a Swap Contract.

“ Swap Obligation ” has the meaning specified in the definition of “Excluded Swap Obligation”.

“ Syndication Agent ” means JPMorgan Chase Bank, N.A.

“ Taxes ” means 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.

“ Tenant ” means (a) with respect to the Initial Master Lease, MGM Lessee, LLC, a Delaware limited liability company, in its capacity as tenant under the Initial Master Lease, and its permitted successors and assigns in such capacity and (b) with respect to any other Master Lease, the tenant thereunder.

“ Term A Commitment ” means, as to each Term   A Lender, its obligation to make Term A Loans to the Borrower pursuant to Section   2.01(a) in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule   2.01 under the caption “Term A Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term A Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the Term A Commitment as of the Closing Date is $300,000,000.

“ Term A Facility ” means, at any time, (a) on or prior to the Closing Date, the aggregate amount of the Term A Commitments at such time and (b) thereafter, the aggregate principal amount of the Term A Loans of all Term A Lenders outstanding at such time.

“ Term A Lender ” means at any time, any Lender that holds Term A Loan Commitments or Term A Loans at such time.

“ Term A Loan ” means an advance made by any Term A Lender under the Term A Facility.

“ Term A Note ” means a promissory note made by the Borrower in favor of a Term A Lender, evidencing Term A Loans made by such Term A Lender, substantially in the form of Exhibit   B -1 .

“ Term B Commitment ” means, as to each Term   B Lender, its obligation to make Term B Loans to the Borrower pursuant to Section   2.01(b) in an aggregate principal amount at any one

 

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time outstanding not to exceed the amount set forth opposite such Lender’s name on Schedule   2.01 under the caption “Term B Commitment” or opposite such caption in the Assignment and Assumption pursuant to which such Term B Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate amount of the Term B Commitment as of the Closing Date is $1,850,000,000.

“ Term B Facility ” means, at any time, (a) on or prior to the Closing Date, the aggregate amount of the Term B Commitments at such time and (b) thereafter, the aggregate principal amount of the Term B Loans of all Term B Lenders outstanding at such time.

“ Term B Lender ” means at any time, (a) on the Closing Date, Bank of America and (b) at any time after the Closing Date, any Lender that holds Term B Loans at such time.

“ Term B Loan ” means an advance made by any Term B Lender under the Term B Facility.

“ Term B Note ” means a promissory note made by the Borrower in favor of a Term B Lender, evidencing Term B Loans made by such Term B Lender, substantially in the form of Exhibit   B -2 .

“ Term Borrowing ” means a borrowing consisting of simultaneous Term Loans of the same Class and Type and, in the case of Eurodollar Rate Loans, having the same Interest Period made by each of the Appropriate Lenders.

“ Term Commitment ” means any of a Term A Commitment, a Term B Commitment, an Incremental Term Loan Commitment and an Other Term Commitment.

“ Term Facilities ” means, at any time, the Term A Facility, the Term B Facility, each credit facility comprising a Class of New Term Loans, if any, each credit facility comprising a Class of Extended Term Loans, if any, and each credit facility comprising a Class of Other Term Loans, if any.

“ Term Loan ” means a Term A Loan, a Term B Loan, an Incremental Term Loan, an Other Term Loan or an Extended Term Loan.

“ Term Loan Extension Request ” has the meaning specified in Section   2.15(a) .

“ Termination Conditions ” means, collectively, (a) the payment in full in cash of the Obligations (other than (i) contingent indemnification obligations as to which no claim has been asserted and (ii) Obligations under Secured Hedge Agreements and Cash Management Obligations) and (b) the termination of the Commitments and the termination or expiration of all Letters of Credit under this Agreement (unless Cash Collateralized).

“ Test Period ” means, (a) at any time prior to the date on which financial statements have been or are required to have been delivered pursuant to Section 7.01(a) or (b) for the Fiscal Quarter of the Borrower ending June 30, 2016, the four Fiscal Quarters ending March 31, 2016 and (b) at any subsequent time, the most recently completed Fiscal Quarter of the Borrower for

 

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which financial statements have been or are required to have been delivered pursuant to Section 7.01(a) or (b) and the three Fiscal Quarters immediately preceding such Fiscal Quarter; provided that (i) the calculations of EBITDA for any Fiscal Quarter ended on or prior to June 30, 2016 shall be as set forth in the definition of “EBITDA”, (ii) the calculations of Borrower Group EBITDA for any Fiscal Quarter ended on or prior to June 30, 2016 shall be as set forth in the definition of “Borrower Group EBITDA” and (iii) the calculations of Interest Coverage Ratio for any Fiscal Quarter ended on or prior to June 30, 2016 shall be as set forth in the definition of “Interest Coverage Ratio”.

“ Total Net Debt to Adjusted Total Assets Ratio ” means, as of any date of determination, the ratio, expressed as a percentage, of (a) Net Funded Total Indebtedness to (b) Adjusted Total Assets.

“ Total Net Leverage Ratio ” means, as of any date of determination, the ratio of (a) the aggregate amount of the Net Funded Total Indebtedness as of such date to (b) Borrower Group EBITDA for the most recently ended Test Period.

“ Total Outstandings ” means the aggregate Outstanding Amount of all Loans and all L/C Obligations.

“ Total Revolving Outstandings ” means the aggregate Outstanding Amount of all Revolving Loans, Swingline Loans, and L/C Obligations.

“ Trade Date ” has the meaning specified in Section 11.06(j)(i) .

“ Transaction Agreements ” means, collectively, the Initial Master Lease, the Initial Master Lease Guaranty, the Master Contribution Agreement, the IP License Agreement, the Registration Rights Agreement and the Corporate Services Agreement.

“ Transactions ” means, collectively, (a) the entering into by the Loan Parties and their applicable Subsidiaries of the Senior Unsecured Note Documents and the issuance and sale of the Senior Unsecured Notes, (b) the entering into by the Loan Parties and their applicable Subsidiaries of the Loan Documents and the borrowings hereunder on the Closing Date, (c) the Initial Public Offering, (d) the OP Units Issuance, (e) the refinancing of the Bridge Credit Agreement, (f) the Reorganization and Contribution, (g) the entering into of the Transaction Agreements and (h) the payment of certain fees and expenses incurred in connection with the consummation of the foregoing.

“ Transfer Agreement ” means 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.

“ Type ” means, with respect to a Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.

“ UCC ” means the Uniform Commercial Code as in effect in the State of New York; provided that, if perfection or the effect of perfection or non-perfection or the priority of any security interest in any Collateral is governed by the Uniform Commercial Code as in effect in a

 

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jurisdiction other than the State of New York, “ UCC ” means the Uniform Commercial Code as in effect from time to time in such other jurisdiction for purposes of the provisions hereof relating to such perfection, effect of perfection or non-perfection or priority.

“ Unconsolidated Affiliate ” means any Person for which the Borrower or a Restricted Subsidiary accounts for its interests in such person under the equity method of accounting in accordance with GAAP.

“ United States ” and “ U.S. ” mean the United States of America.

“ Unreimbursed Amount ” has the meaning specified in Section   2.03(c)(i) .

“ Unrestricted Cash ” means, as of any date of determination, the greater of (a) (i)all cash and Cash Equivalents included in the balance sheets of the Borrower and the Restricted Subsidiaries as of such date that, in each case, are free and clear of all Liens, other than Liens in favor of the Administrative Agent for the benefit of the Secured Parties and non-consensual Liens that are permitted under Section 8.03 , minus (ii) $5,000,000 and (b) zero.

“ Unrestricted Subsidiaries ” means (a) the Subsidiaries listed on Schedule   5.04 as a “Specified Unrestricted Subsidiary”, (b) each Subsidiary of the Borrower designated as an “Unrestricted Subsidiary” pursuant to and in compliance with Section   6.11 and Section 8.06 , and (c) any Subsidiary of a Person that is an Unrestricted Subsidiary of the type described in clauses   (a) through (b) above.

“ U.S. Person ” means any Person that is a “United States Person” as defined in Section 7701(a)(30) of the Code.

“ U.S. Tax Compliance Certificate ” has the meaning specified in Section 3.01(e)(ii)(B)(III) .

“ Weighted Average Life to Maturity ” means, on any date and with respect to the aggregate amount of the Term Loans or any applicable Class(es) of Term Loans, an amount equal to (a) the scheduled repayments of such Term Loans (or Class(es) of Term Loans) to be made after such date, multiplied by the number of days from such date to the date of such scheduled repayments divided by (b) the aggregate principal amount of such Term Loans (or Class(es) of Term Loans).

“ Wholly Owned Subsidiary ” means, with respect to any Person, any corporation, partnership, limited liability company or other entity of which all of the Equity Interests (other than directors’ qualifying shares, nominee shares or other similar securities) are directly or indirectly owned or controlled by such Person. Unless the context clearly requires otherwise, all references to any Wholly Owned Subsidiary means a Wholly Owned Subsidiary of the Borrower.

“ Withdrawal Liability ” means liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, as such terms are defined in Part 1 of Subtitle E of Title IV of ERISA.

 

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“ Withholding Agent ” means any Loan Party, the Administrative Agent and any other applicable withholding agent.

“ Write-Down and Conversion Powers ” means, 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.

1.02 Other Interpretive Provisions . With reference to this Agreement and each other Loan Document, unless otherwise specified herein or in such other Loan Document:

(a) The definitions of terms herein shall apply equally to the singular and plural forms of the terms defined. Whenever the context may require, any pronoun shall include the corresponding masculine, feminine and neuter forms. The words “include,” “includes” and “including” shall be deemed to be followed by the phrase “without limitation.” The word “will” shall be construed to have the same meaning and effect as the word “shall.” Unless the context requires otherwise, (i) any definition of or reference to any agreement, instrument or other document shall be construed as referring to such agreement, instrument or other document as from time to time amended, restated, modified, supplemented, extended, renewed, refunded, replaced or refinanced from time to time in one or more agreements (in each case with the same or new lenders, institutional investors or agents), including any agreement extending the maturity thereof or otherwise restructuring all or any portion of the Indebtedness thereunder, (ii) any reference herein to any Person shall be construed to include such Person’s successors and permitted assigns, (iii) the words “herein,” “hereof” and “hereunder,” and words of similar import when used in any Loan Document, shall be construed to refer to such Loan Document in its entirety and not to any particular provision thereof, (iv) all references in a Loan Document to Articles, Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and Exhibits and Schedules to, the Loan Document in which such references appear, (v) any reference to any law shall include all statutory and regulatory provisions consolidating, amending, replacing or interpreting such law and any reference to any law or regulation shall, unless otherwise specified, refer to such law or regulation as amended, modified or supplemented from time to time, (vi) the words “ asset ” and “ property ” shall be construed to have the same meaning and effect and to refer to any and all tangible and intangible assets and properties, including cash, securities, accounts and contract rights and (vii) the word “lease” shall be construed to mean any lease, sublease, franchise agreement, license, occupancy or concession agreement.

(b) In the computation of periods of time from a specified date to a later specified date, the word “from” means “from and including;” the words “to” and “until” each mean “to but excluding;” and the word “through” means “to and including.”

(c) Section headings herein and in the other Loan Documents are included for convenience of reference only and shall not affect the interpretation of this Agreement or any other Loan Document.

 

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1.03 Accounting Terms .

(a) Generally . All accounting terms not specifically or completely defined herein shall be construed in conformity with, and all financial data (including financial ratios and other financial calculations) required to be submitted pursuant to this Agreement shall be prepared in conformity with, GAAP applied on a consistent basis (except as otherwise disclosed in such financial statements), as in effect from time to time.

(b) Changes in GAAP . If at any time any change in GAAP would affect the computation of any financial ratio or requirement set forth in any Loan Document, and the Borrower or the Required Revolving/Term A Lenders shall so request, the Administrative Agent, the Required Revolving/Term A Lenders and the 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 Revolving/Term A Lenders); provided that, until so amended, (i) such ratio or requirement shall continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower shall provide to the Administrative Agent and the Lenders financial statements and other documents required under this Agreement or as reasonably requested hereunder setting forth a reconciliation between calculations of such ratio or requirement made before and after giving effect to such change in GAAP.

(c) Consolidation of Variable Interest Entities . All references herein to consolidated financial statements of the Borrower and its Subsidiaries or to the determination of any amount for the Borrower and its Subsidiaries on a consolidated basis or any similar reference shall, in each case, be deemed to include each variable interest entity that the Borrower is required to consolidate pursuant to FASB Accounting Standards Codification 810 “Consolidation,” as if such variable interest entity were a Subsidiary as defined herein.

1.04 Rounding . Any financial ratios required to be maintained by the Borrower pursuant to this Agreement shall be calculated by dividing the appropriate component by the other component, carrying the result to one place more than the number of places by which such ratio is expressed herein and rounding the result up or down to the nearest number (with a rounding-up if there is no nearest number).

1.05 Times of Day . Unless otherwise specified, all references herein to times of day shall be references to Pacific time (daylight or standard, as applicable).

1.06 Letter of Credit Amounts . Unless otherwise specified herein, the amount of a Letter of Credit at any time shall be deemed to be the stated amount of such Letter of Credit in effect at such time; provided , that with respect to any Letter of Credit that, by its terms or the terms of any Issuer Document related thereto, provides for one or more automatic increases in the stated amount thereof, the amount of such Letter of Credit shall be deemed to be the maximum stated amount of such Letter of Credit after giving effect to all such increases, whether or not such maximum stated amount is in effect at such time.

1.07 Pro Forma Compliance; Financial Ratio Calculations .

 

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(a) Notwithstanding anything to the contrary herein, the Financial Ratios shall be calculated in the manner prescribed by this Section 1.07 ; provided that notwithstanding anything to the contrary in clauses (b) or (c) of this Section 1.07 , when calculating the Financial Ratios, as applicable, for purposes of determining actual compliance (and not Pro Forma Compliance or compliance on a Pro Forma Basis) with any financial covenant pursuant to Section 8.11 , the events described in this Section 1.07 that occurred subsequent to the end of the applicable Test Period shall not be given pro forma effect.

(b) For purposes of calculating the Financial Ratios, Specified Transactions (and the incurrence or repayment of any Indebtedness in connection therewith) that have been made (i) during the applicable Test Period and (ii) except as set forth in Section 1.07(a) , subsequent to such Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made shall be calculated on a pro forma basis assuming that all such Specified Transactions (and any increase or decrease in Net Income, EBITDA, Borrower Group EBITDA or Adjusted Total Assets and the component financial definitions used therein attributable to any Specified Transaction) had occurred on the first day of the applicable Test Period. If since the beginning of any applicable Test Period any Person that subsequently became a Restricted Subsidiary of the Borrower or was merged, amalgamated or consolidated with or into the Borrower or any of its Restricted Subsidiaries since the beginning of such Test Period shall have made any Specified Transaction that would have required adjustment pursuant to this Section 1.07 , then the Financial Ratios shall be calculated to give pro forma effect thereto in accordance with this Section 1.07 .

(c) In the event that the Borrower or any of its Restricted Subsidiaries incurs (including by assumption or guarantees) or repays (including by redemption, repayment, prepayment, retirement, exchange or extinguishment or discharge) any Indebtedness included in the calculations of any of the Financial Ratios (in each case, other than Indebtedness incurred or repaid under any revolving credit facility), (i) during the applicable Test Period and/or (ii) except as set forth in Section 1.07(a) , subsequent to the end of the applicable Test Period and prior to or simultaneously with the event for which the calculation of any such ratio is made, then the Financial Ratios shall be calculated giving pro forma effect to such incurrence or repayment or discharge of Indebtedness, to the extent required, as if the same had occurred on (A) the last day of the applicable Test Period in the case of the Total Net Leverage Ratio, Total Net Debt to Adjusted Total Assets Ratio and the Senior Secured Net Debt to Adjusted Total Assets Ratio and (B) the first day of the applicable Test Period in the case of the Interest Coverage Ratio. If any Indebtedness bears a floating rate of interest and is being given pro forma effect, the interest on such Indebtedness shall be calculated as if the rate in effect on the date of the event for which the calculation of the Interest Coverage Ratio is made had been the applicable rate for the entire period (taking into account any hedging obligations applicable to such Indebtedness); provided that, in the case of repayment of any Indebtedness, to the extent actual interest related thereto was included during all or any portion of the applicable Test Period, the actual interest may be used for the applicable portion of such Test Period and to give pro forma effect to such repayment. Interest on a Capital Lease shall be deemed to accrue at an interest rate reasonably determined by a responsible financial or accounting officer of the Borrower to be the rate of interest implicit in such Capital Lease in accordance with GAAP. Interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a London interbank offered rate, or

 

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other rate, shall be determined to have been based upon the rate actually chosen, or if none, then based upon such optional rate chosen as the Borrower may designate.

(d) When used in reference to the calculation of Financial Ratios for purposes of determining actual compliance with Section 8.11 (and not Pro Forma Compliance or compliance on a Pro Forma Basis), references to the date of determination shall mean the last day of the relevant Fiscal Quarter then being tested. When used in reference to the calculation of Financial Ratios for purposes of determining Pro Forma Compliance or compliance on a Pro Forma Basis (other than for purposes of actual compliance with Section 8.11 ), references to the date of determination shall mean the calculation of Financial Ratios as of the last day of the most recent Test Period on a Pro Forma Basis. For purposes of determining Pro Forma Compliance or compliance on a Pro Forma Basis with covenants set forth in Section 8.11 prior to the date on which such covenants would otherwise apply, the covenants set forth in Section 8.11 shall be deemed to be applicable for purposes of such test.

1.08 Timing of Conditions Related to Limited Condition Transactions . Notwithstanding anything in this Agreement or any Loan Document to the contrary, when determining compliance with any applicable conditions to the consummation of any Limited Condition Transaction (including, without limitation, any Default or Event of Default condition), the date of determination of such applicable conditions shall, at the option of the Borrower (the Borrower’s election to exercise such option in connection with any Limited Condition Transaction, an “ LCT Election ”), be deemed to be the date the definitive agreements for such Limited Condition Transaction are entered into (the “ LCT Test Date ”). If on a Pro Forma Basis after giving effect to such Limited Condition Transaction and the other transactions to be entered into in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) such applicable conditions are calculated as if such Limited Condition Transaction and other related transactions had occurred at the beginning of the most recent Test Period ending prior to the LCT Test Date for which financial statements are available to the Administrative Agent, the Borrower or applicable Restricted Subsidiary could have taken such action on the relevant LCT Test Date in compliance with the applicable conditions thereto, such applicable conditions shall be deemed to have been complied with, unless an Event of Default pursuant to Section 9.01(a) or 9.01( i ) shall be continuing on the date such Limited Condition Transaction is actually consummated. For the avoidance of doubt, if an LCT Election is made, the applicable conditions thereto shall not be tested at the time of consummation of such Limited Condition Transaction. If the Borrower has made an LCT Election for any Limited Condition Transaction, then in connection with any subsequent calculation of any ratio or basket availability with respect to any other Specified Transaction on or following the relevant LCT Test Date and prior to the earlier of the date on which such Limited Condition Transaction is consummated or the date that the definitive agreement for such Limited Condition Transaction is terminated or expires without consummation of such Limited Condition Transaction, any such ratio or basket shall be calculated both (x) on a Pro Forma Basis assuming such Limited Condition Transaction and other related transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have been consummated and (y) on a Pro Forma Basis assuming such Limited Condition Transaction and other related transactions in connection therewith (including any incurrence of Indebtedness and the use of proceeds thereof) have not been consummated, and the applicable action shall only be permitted if there is sufficient availability under the applicable ratio or basket under both of the calculations pursuant to clause (x) and (y).

 

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ARTICLE II

THE COMMITMENTS AND CREDIT EXTENSIONS

2.01 The Loans .

(a) The Term   A Borrowing . Subject to the terms and conditions set forth herein, on the Closing Date, each of the Term A Lenders severally agrees to make Term A Loans to the Borrower in the aggregate principal amount of $300,000,000 in Dollars. The Borrowing of Term A Loans on the Closing Date shall consist of Term A Loans made simultaneously by the Term A Lenders in accordance with their respective Applicable Percentage of the Term A Facility. Amounts borrowed under this Section 2.01(a) and repaid or prepaid may not be reborrowed. Term A Loans may be Base Rate Loans or Eurodollar Rate Loans as further provided herein.

(b) The Term   B Borrowing . Subject to the terms and conditions set forth herein, on the Closing Date, Bank of America will make Term B Loans to the Borrower in the aggregate principal amount of $1,850,000,000 in Dollars. Amounts borrowed under this Section 2.01(b) and repaid or prepaid may not be reborrowed. Term B Loans may be Base Rate Loans or Eurodollar Rate Loans as further provided herein.

(c) The Revolving Borrowings . Subject to the terms and conditions set forth herein, each Revolving Lender severally agrees to make loans (each such loan, a “ Revolving Loan ”) to the Borrower from time to time in Dollars, on any Business Day during the Availability Period, in an aggregate amount not to exceed at any time outstanding the amount of such Lender’s Revolving Commitment; provided , that after giving effect to any Revolving Borrowing, (i) the Revolving Exposure of any Revolving Lender shall not exceed such Revolving Lender’s Revolving Commitment, (ii) the Revolving Class Exposure of any Revolving Lender in respect of any Class shall not exceed such Revolving Lender’s Revolving Commitment of such Class, (iii) the Revolving Class Exposure of all Revolving Lenders in respect of any Class of Revolving Commitments shall not exceed the aggregate outstanding Revolving Commitments of such Class, (iv) the aggregate Revolving Exposures shall not exceed the total Revolving Commitments and (v) the Total Revolving Outstandings shall not exceed the aggregate outstanding Revolving Commitments. Within the limits of each Revolving Lender’s Revolving Commitment, and subject to the other terms and conditions hereof, the Borrower may borrow under this Section   2.01(c) , prepay under Section   2.04 , and reborrow under this Section   2.01(c) . Revolving Loans may be Base Rate Loans or Eurodollar Rate Loans, as further provided herein.

2.02 Borrowings, Conversions and Continuations of Loans .

(a) Each Term Borrowing, each Revolving Borrowing, each conversion of Term Loans or Revolving Loans from one Type to the other, and each continuation of Eurodollar Rate Loans shall be made upon the Borrower’s irrevocable notice to the Administrative Agent, which may be given by (A) telephone, or (B) a Committed Loan Notice; provided that any telephone notice must be confirmed promptly by delivery to the Administrative Agent of a Committed Loan Notice. Each such notice must be received by the Administrative Agent not later than 10:00 a.m. (i) three Business Days prior to the requested date of any Borrowing of, conversion to or continuation of Eurodollar Rate Loans or of any conversion of Eurodollar Rate Loans to Base Rate Loans, or (ii) on the requested date of any Borrowing of Base Rate Loans; provided that, if

 

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the Borrower wishes to request Eurodollar Rate Loans having an Interest Period other than one, two, three or six months or one week in duration as provided in the definition of “Interest Period,” the applicable notice must be received by the Administrative Agent not later than 10:00 a.m. four Business Days prior to the requested date of such Borrowing, conversion or continuation, whereupon the Administrative Agent shall give prompt notice to Appropriate Lenders of such request and determine whether the requested Interest Period is acceptable to all of them, and not later than 10:00 a.m., three Business Days before the requested date of such Borrowing, conversion or continuation, the Administrative Agent shall notify the Borrower (which notice may be by telephone) whether or not the requested Interest Period has been consented to by all Appropriate Lenders. Each Borrowing of, conversion to or continuation of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof. Except as provided in Section   2.03(c)(ii) , each Borrowing of or conversion to Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof. Each Committed Loan Notice shall specify (i) whether the Borrower is requesting a Borrowing, a conversion of Loans from one Type to the other, or a continuation of Eurodollar Rate Loans, and the Class of Loans to be borrowed, converted or continued, (ii) the requested date of the Borrowing, conversion or continuation, as the case may be (which shall be a Business Day), (iii) the principal amount of Loans to be borrowed, converted or continued, (iv) the Type of Loans to be borrowed or to which existing Loans are to be converted, and (v) if applicable, the duration of the Interest Period with respect thereto. If the Borrower fails to specify a Type of Loan in a Committed Loan Notice or if the Borrower fails to give a timely notice requesting a conversion or continuation, then the applicable Loans shall be made as, or converted to, Base Rate Loans. Any such automatic conversion to Base Rate Loans shall be effective as of the last day of the Interest Period then in effect with respect to the applicable Eurodollar Rate Loans. If the Borrower requests a Borrowing of, conversion to, or continuation of Eurodollar Rate Loans in any such Committed Loan Notice, but fails to specify an Interest Period, it will be deemed to have specified an Interest Period of one month.

(b) Following receipt of a Committed Loan Notice, the Administrative Agent shall promptly notify each Lender of the amount of its Applicable Percentage under the applicable Facility of the applicable Loans, and if no timely notice of a conversion or continuation is provided by the Borrower, the Administrative Agent shall notify each Lender of the details of any automatic conversion to Base Rate Loans described in Section   2.02(a) . In the case of a Borrowing, each Appropriate Lender shall make the amount of its Loan available to the Administrative Agent in immediately available funds at the Administrative Agent’s Office not later than 11:00 a.m. on the Business Day specified in the applicable Committed Loan Notice. Upon satisfaction of the applicable conditions set forth in Section   4.02 (and, if such Borrowing is the initial Credit Extension, Section   4.01 ), the Administrative Agent shall make all funds so received available to the Borrower in like funds as received by the Administrative Agent either by (i) crediting the account of the Borrower, as specified in such Committed Loan Notice, on the books of Bank of America with the amount of such funds or (ii) wire transfer of such funds, in each case in accordance with instructions provided to (and reasonably acceptable to) the Administrative Agent by the Borrower; provided , that if, on the date a Committed Loan Notice with respect to a Revolving Borrowing is given by the Borrower, there are L/C Borrowings outstanding, then the proceeds of such Revolving Borrowing, first , shall be applied to the payment in full of any such L/C Borrowings, and second , shall be made available to the Borrower as provided above.

 

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(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be continued or converted only on the last day of an Interest Period for such Eurodollar Rate Loan. Upon the occurrence and during the continuation of an Event of Default, the Required Lenders may require by notice to the Borrower that no Loans may be converted to or continued as Eurodollar Rate Loans.

(d) The Administrative Agent shall promptly notify the Borrower and the Lenders of the interest rate applicable to any Interest Period for Eurodollar Rate Loans upon determination of such interest rate. At any time that Base Rate Loans are outstanding, the Administrative Agent shall notify the Borrower and the Lenders of any change in Bank of America’s prime rate used in determining the Base Rate promptly following the public announcement of such change.

(e) After giving effect to all Term Borrowings of Term A Loans, all conversions of Term A Loans from one Type to the other, and all continuations of Term A Loans as the same Type, there shall not be more than 10 Interest Periods in effect in respect of the Term A Facility. After giving effect to all Term Borrowings of Term B Loans, all conversions of Term B Loans from one Type to the other, and all continuations of Term B Loans as the same Type, there shall not be more than 10 Interest Periods in effect in respect of the Term B Facility. After giving effect to all Revolving Borrowings, all conversions of Revolving Loans from one Type to the other, and all continuations of Revolving Loans as the same Type, there shall not be more than 8 Interest Periods in effect in respect of the Revolving Facility. The maximum number of Interest Periods in respect of any other Facility shall be set forth in the relevant Incremental Joinder Agreement, Refinancing Amendment or Extension Amendment, as applicable.

2.03 Letters of Credit .

(a) The Letter of Credit Commitment .

(i) Subject to the terms and conditions set forth herein, (A) each L/C Issuer agrees, in reliance upon the agreements of the Revolving Lenders set forth in this Section   2.03 , (1) from time to time on any Business Day during the period from the Closing Date until the Letter of Credit Expiration Date, to issue Letters of Credit denominated in Dollars for the account of the Borrower or any of its Subsidiaries, and to amend or extend Letters of Credit previously issued by it, in accordance with Section   2.03(b) , and (2) to honor drawings under the Letters of Credit issued by it; and (B) the Revolving Lenders severally agree to participate in Letters of Credit issued under this Agreement and any drawings thereunder; provided that after giving effect to any L/C Credit Extension with respect to any Letter of Credit, (1) the Total Revolving Outstandings shall not exceed the aggregate outstanding Revolving Commitments, (2) the Revolving Exposure of any Revolving Lender shall not exceed such Lender’s Revolving Commitment, (3) the Outstanding Amount of all L/C Obligations shall not exceed the Letter of Credit Sublimit, (4) the Revolving Class Exposure of any Revolving Lender in respect of any Class shall not exceed such Revolving Lender’s Revolving Commitment of such Class, and (5) the Revolving Class Exposure of all Revolving Lenders in respect of any Class of Revolving Commitments shall not exceed the aggregate outstanding Revolving Commitments of such Class. Each request by the Borrower for the issuance or amendment of a Letter of Credit shall be deemed to be a representation by the Borrower

 

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that the L/C Credit Extension so requested complies with the conditions set forth in the proviso to the preceding sentence. Within the foregoing limits, and subject to the terms and conditions hereof, the Borrower’s ability to obtain Letters of Credit shall be fully revolving, and accordingly the Borrower may, during the foregoing period, obtain Letters of Credit to replace Letters of Credit that have expired or that have been drawn upon and reimbursed.

(ii) No L/C Issuer shall issue any Letter of Credit if:

(A) subject to Section   2.03(b)(iii) , the expiry date of such requested Letter of Credit would occur more than twelve months after the date of issuance or last extension, unless the Required Revolving Lenders have approved such expiry date; or

(B) the expiry date of such requested Letter of Credit would occur after the Letter of Credit Expiration Date, unless (x) all the Revolving Lenders and the L/C Issuer have approved such expiry date or (y) such Letter of Credit is Cash Collateralized on terms and pursuant to arrangements satisfactory to the applicable L/C Issuer; provided that, in the case of any such Letter of Credit that is so Cash Collateralized, the obligations of the Revolving Lenders to participate in such Letter of Credit pursuant to Section 2.03(c) shall terminate upon the Letter of Credit Expiration Date.

(iii) No L/C Issuer shall be under any obligation to issue any Letter of Credit if:

(A) any order, judgment or decree of any Governmental Authority or arbitrator shall by its terms purport to enjoin or restrain such L/C Issuer from issuing such Letter of Credit, or any Law applicable to such L/C Issuer or any request or directive (whether or not having the force of law) from any Governmental Authority with jurisdiction over such L/C Issuer shall prohibit, or request that such L/C Issuer refrain from, the issuance of letters of credit generally or such Letter of Credit in particular or shall impose upon such L/C Issuer with respect to such Letter of Credit any restriction, reserve or capital requirement (for which such L/C Issuer is not otherwise compensated hereunder) not in effect on the Closing Date, or shall impose upon such L/C Issuer any unreimbursed loss, cost or expense which was not applicable on the Closing Date and which such L/C Issuer in good faith deems material to it;

(B) the issuance of such Letter of Credit would violate one or more policies of such L/C Issuer applicable to letters of credit generally;

(C) except as otherwise agreed by the Administrative Agent and such L/C Issuer, such Letter of Credit is in an initial stated amount less than $250,000;

(D) the Letter of Credit is to be denominated in a currency other than Dollars;

 

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(E) the L/C Issuer does not as of the issuance date of the requested Letter of Credit issue Letters of Credit in the requested currency;

(F) such Letter of Credit contains any provisions for automatic reinstatement of the stated amount after any drawing thereunder; or

(G) a default of any Lender’s obligations to fund under Section   2.03(c) exists or any Lender is at such time a Defaulting Lender hereunder, unless such L/C Issuer has entered into satisfactory arrangements, including the delivery of Cash Collateral in an amount equal to 103% of L/C Obligations with respect to any such Letter of Credit or otherwise in an amount and/or in a manner reasonably acceptable to such L/C Issuer, with the Borrower or such Lender to eliminate such L/C Issuer’s actual or potential Fronting Exposure (after giving effect to Section 2.18(a)(iii) ) with respect to such Lender arising from either the Letter of Credit then proposed to be issued or that Letter of Credit and all other L/C Obligations as to which such L/C Issuer has actual or potential Fronting Exposure, as it may elect in its reasonable discretion.

(iv) No L/C Issuer shall amend any Letter of Credit if such L/C Issuer would not be permitted at such time to issue such Letter of Credit in its amended form under the terms hereof.

(v) No L/C Issuer shall have any obligation to amend any Letter of Credit if (A) such L/C Issuer would have no obligation at such time to issue such Letter of Credit in its amended form under the terms hereof, or (B) the beneficiary of such Letter of Credit does not accept the proposed amendment to such Letter of Credit.

(vi) Each L/C Issuer shall act on behalf of the Revolving Lenders with respect to any Letters of Credit issued by it and the documents associated therewith, and each L/C Issuer shall have all of the benefits and immunities (A) provided to the Administrative Agent in Article   X with respect to any acts taken or omissions suffered by such L/C Issuer in connection with Letters of Credit issued by it or proposed to be issued by it and Issuer Documents pertaining to such Letters of Credit as fully as if the term “Administrative Agent” as used in Article   X included such L/C Issuer with respect to such acts or omissions, and (B) as additionally provided herein with respect to such L/C Issuer.

(b) Procedures for Issuance and Amendment of Letters of Credit; Auto-Extension Letters of Credit .

(i) Each Letter of Credit shall be issued or amended, as the case may be, upon the request of the Borrower delivered to an L/C Issuer (with a copy to the Administrative Agent) in the form of a Letter of Credit Application, signed by a Responsible Officer. Such Letter of Credit Application may be sent by facsimile, by United States mail, by overnight courier, by electronic transmission using the system provided by the applicable L/C Issuer, by personal delivery or by any other means acceptable to such L/C Issuer. Such Letter of Credit Application must be received by the applicable L/C Issuer and the

 

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Administrative Agent not later than 1:00 p.m. at least three Business Days (or such later date and time as the Administrative Agent and such L/C Issuer may agree in a particular instance in their reasonable discretion) prior to the proposed issuance date or date of amendment, as the case may be. In the case of a request for an initial issuance of a Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to such L/C Issuer: (A) the proposed issuance date of the requested Letter of Credit (which shall be a Business Day); (B) the amount and currency thereof; (C) the expiry date thereof; (D) the name and address of the beneficiary thereof; (E) the documents to be presented by such beneficiary in case of any drawing thereunder; (F) the full text of any certificate to be presented by such beneficiary in case of any drawing thereunder; (G) the purpose and nature of the requested Letter of Credit; and (H) such other matters as such L/C Issuer may reasonably require. In the case of a request for an amendment of any outstanding Letter of Credit, such Letter of Credit Application shall specify in form and detail satisfactory to such L/C Issuer (1) the Letter of Credit to be amended; (2) the proposed date of amendment thereof (which shall be a Business Day); (3) the nature of the proposed amendment; and (4) such other matters as such L/C Issuer may reasonably require. Additionally, the Borrower shall furnish to such L/C Issuer and the Administrative Agent such other documents and information pertaining to such requested Letter of Credit issuance or amendment, including any Issuer Documents, as such L/C Issuer or the Administrative Agent may reasonably require.

(ii) Promptly after receipt of any Letter of Credit Application, the applicable L/C Issuer will confirm with the Administrative Agent (by telephone or in writing) that the Administrative Agent has received a copy of such Letter of Credit Application from the Borrower and, if not, such L/C Issuer will provide the Administrative Agent with a copy thereof. Unless such L/C Issuer has received written notice from any Revolving Lender, the Administrative Agent or any Loan Party, at least one Business Day prior to the requested date of issuance or amendment of the applicable Letter of Credit, that one or more applicable conditions contained in Article   IV shall not then be satisfied, then, subject to the terms and conditions hereof, such L/C Issuer shall, on the requested date, issue a Letter of Credit for the account of the Borrower (or the applicable Subsidiary), as specified in such Letter of Credit Application, or enter into the applicable amendment, as the case may be, in each case in accordance with such L/C Issuer’s usual and customary business practices. Immediately upon the issuance of each Letter of Credit, each Revolving Lender shall be deemed to, and hereby irrevocably and unconditionally agrees to, purchase from such L/C Issuer a risk participation in such Letter of Credit in an amount equal to the product of such Revolving Lender’s Applicable Revolving Percentage times the amount of such Letter of Credit.

(iii) If the Borrower so requests in any applicable Letter of Credit Application, the applicable L/C Issuer may, in its sole and absolute discretion, agree to issue a Letter of Credit that has automatic extension provisions (each, an “ Auto-Extension Letter of Credit ”); provided that any such Auto-Extension Letter of Credit must permit such L/C Issuer to prevent any such extension at least once in each twelve-month period (commencing with the date of issuance of such Letter of Credit) by giving prior notice to the beneficiary thereof not later than a day (the “ Non-Extension Notice Date ”) in each such twelve-month period to be agreed upon at the time such Letter of Credit is issued.

 

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Unless otherwise directed by such L/C Issuer, the Borrower shall not be required to make a specific request to such L/C Issuer for any such extension. Once an Auto-Extension Letter of Credit has been issued, the Revolving Lenders shall be deemed to have authorized (but may not require) such L/C Issuer to permit the extension of such Letter of Credit at any time to an expiry date not later than the Letter of Credit Expiration Date (unless (x) all the Revolving Lenders and the L/C Issuer have approved such expiry date or (y) such Letter of Credit is Cash Collateralized on terms and pursuant to arrangements satisfactory to the applicable L/C Issuer); provided , that such L/C Issuer shall not permit any such extension if (A) such L/C Issuer has determined that it would not be permitted, or would have no obligation at such time to issue such Letter of Credit in its revised form (as extended) under the terms hereof (by reason of the provisions of clause   (ii) or (iii)  of Section   2.03(a) or otherwise), or (B) it has received notice (which may be by telephone or in writing) on or before the day that is seven Business Days before the Non-Extension Notice Date (1) from the Administrative Agent that the Required Revolving Lenders have elected to not permit such extension or (2) from the Administrative Agent, any Revolving Lender or the Borrower that one or more of the applicable conditions specified in Section   4.02 is not then satisfied, and in each such case directing such L/C Issuer not to permit such extension.

(iv) Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, the applicable L/C Issuer will also deliver to the Borrower and the Administrative Agent a true and complete copy of such Letter of Credit or amendment.

(c) Drawings and Reimbursements; Funding of Participations .

(i) Upon receipt from the beneficiary of any Letter of Credit of any notice of a drawing under such Letter of Credit, the applicable L/C Issuer shall notify the Borrower and the Administrative Agent thereof. Not later than 11:00 a.m. on the date of any payment by such L/C Issuer under a Letter of Credit (each such date, an “ Honor Date ”), the Borrower shall reimburse such L/C Issuer through the Administrative Agent in an amount equal to the amount of such drawing. If the Borrower fails to so reimburse such L/C Issuer by such time, the applicable L/C Issuer shall promptly notify the Administrative Agent who shall promptly notify each Revolving Lender of the Honor Date, the amount of the unreimbursed drawing (the “ Unreimbursed Amount ”), and the amount of such Revolving Lender’s Applicable Revolving Percentage thereof. In such event, the Borrower shall be deemed to have requested a Revolving Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount equal to the Unreimbursed Amount, without regard to the minimum and multiples specified in Section   2.02 for the principal amount of Base Rate Loans, but subject to the amount of the unutilized portion of the Revolving Commitments and the conditions set forth in Section   4.02 (other than the delivery of a Committed Loan Notice). Any notice given by such L/C Issuer or the Administrative Agent pursuant to this Section   2.03(c)( i ) may be given by telephone if immediately confirmed in writing; provided that the lack of such an immediate confirmation shall not affect the conclusiveness or binding effect of such notice.

 

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(ii) Each Revolving Lender (including each Revolving Lender that is an L/C Issuer) shall upon any notice pursuant to Section   2.03(c)(i) make funds available (and the Administrative Agent may apply Cash Collateral for this purpose) for the account of the applicable L/C Issuer at the Administrative Agent’s Office in an amount equal to its Applicable Revolving Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business Day specified in such notice by the Administrative Agent, whereupon, subject to the provisions of Section   2.03(c)(iii) , each Revolving Lender that so makes funds available shall be deemed to have made a Base Rate Loan to the Borrower in such amount. The Administrative Agent shall remit the funds so received to the applicable L/C Issuer.

(iii) With respect to any Unreimbursed Amount that is not fully refinanced by a Revolving Borrowing of Base Rate Loans because the conditions set forth in Section   4.02 cannot be satisfied or for any other reason, the Borrower shall be deemed to have incurred from the applicable L/C Issuer an L/C Borrowing in the amount of the Unreimbursed Amount that is not so refinanced, which L/C Borrowing shall be due and payable on demand (together with interest) and shall bear interest at the Default Rate. In such event, each Revolving Lender’s payment to the Administrative Agent for the account of such L/C Issuer pursuant to Section   2.03(c)(ii) shall be deemed payment in respect of its participation in such L/C Borrowing and shall constitute an L/C Advance from such Lender in satisfaction of its participation obligation under this Section   2.03 .

(iv) Until each Revolving Lender funds its Revolving Loan or L/C Advance pursuant to this Section   2.03(c) to reimburse the applicable L/C Issuer for any amount drawn under any Letter of Credit, interest in respect of such Lender’s Applicable Revolving Percentage of such amount shall be solely for the account of such L/C Issuer.

(v) Each Revolving Lender’s obligation to make Revolving Loans or L/C Advances to reimburse each L/C Issuer for amounts drawn under Letters of Credit, as contemplated by this Section   2.03(c) , shall be absolute and unconditional and shall not be affected by any circumstance, including (A) any setoff, counterclaim, recoupment, defense or other right which such Lender may have against such L/C Issuer, the Borrower or any other Person for any reason whatsoever; (B) the occurrence or continuance of a Default, or (C) any other occurrence, event or condition, whether or not similar to any of the foregoing; provided , that each Revolving Lender’s obligation to make Revolving Loans pursuant to this Section   2.03(c) is subject to the conditions set forth in Section   4.02 (other than delivery by the Borrower of a Committed Loan Notice). No such making of an L/C Advance shall relieve or otherwise impair the obligation of the Borrower to reimburse such L/C Issuer for the amount of any payment made by such L/C Issuer under any Letter of Credit, together with interest as provided herein.

(vi) If any Revolving Lender fails to make available to the Administrative Agent for the account of any L/C Issuer any amount required to be paid by such Lender pursuant to the foregoing provisions of this Section   2.03(c) by the time specified in Section   2.03(c)(ii) , then, without limiting the other provisions of this Agreement, such L/C Issuer shall be entitled to recover from such Lender (acting through the Administrative Agent), on demand, such amount with interest thereon for the period from

 

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the date such payment is required to the date on which such payment is immediately available to such L/C Issuer at a rate per annum equal to the greater of the Federal Funds Rate and a rate determined by such L/C Issuer in accordance with banking industry rules on interbank compensation, plus any administrative, processing or similar fees customarily charged by such L/C Issuer in connection with the foregoing. If such Lender pays such amount (with interest and fees as aforesaid), the amount so paid shall constitute such Lender’s Loan included in the relevant Borrowing or L/C Advance in respect of the relevant L/C Borrowing, as the case may be. A certificate of such L/C Issuer submitted to any Revolving Lender (through the Administrative Agent) with respect to any amounts owing under this Section   2.03(c)(vi) shall be conclusive absent manifest error.

(d) Repayment of Participations .

(i) At any time after any L/C Issuer has made a payment under any Letter of Credit and has received from any Revolving Lender such Lender’s L/C Advance in respect of such payment in accordance with Section   2.03(c) , if the Administrative Agent receives for the account of such L/C Issuer any payment in respect of the related Unreimbursed Amount or interest thereon (whether directly from the Borrower or otherwise, including proceeds of Cash Collateral applied thereto by the Administrative Agent), the Administrative Agent will distribute to such Lender its Applicable Revolving Percentage thereof in the same funds as those received by the Administrative Agent.

(ii) If any payment received by the Administrative Agent for the account of any L/C Issuer pursuant to Section   2.03(c)(i) is required to be returned under any of the circumstances described in Section   11.05 (including pursuant to any settlement entered into by such L/C Issuer in its discretion), each Revolving Lender shall pay to the Administrative Agent for the account of such L/C Issuer its Applicable Revolving Percentage thereof on demand of the Administrative Agent, plus interest thereon from the date of such demand to the date such amount is returned by such Lender, at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders under this clause shall survive the satisfaction of the Termination Conditions and the termination of this Agreement.

(e) Obligations Absolute . The obligation of the Borrower to reimburse each L/C Issuer for each drawing under each Letter of Credit issued by such L/C Issuer and to repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall be paid strictly in accordance with the terms of this Agreement under all circumstances, including the following:

(i) any lack of validity or enforceability of such Letter of Credit, this Agreement, or any other Loan Document;

(ii) the existence of any claim, counterclaim, setoff, defense or other right that the Borrower or any Subsidiary may have at any time against any beneficiary or any transferee of such Letter of Credit (or any Person for whom any such beneficiary or any such transferee may be acting), such L/C Issuer or any other Person, whether in connection with this Agreement, the transactions contemplated hereby or by such Letter of Credit or any agreement or instrument relating thereto, or any unrelated transaction;

 

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(iii) any draft, demand, certificate or other document presented under such Letter of Credit proving to be forged, fraudulent, invalid or insufficient in any respect or any statement therein being untrue or inaccurate in any respect; or any loss or delay in the transmission or otherwise of any document required in order to make a drawing under such Letter of Credit;

(iv) waiver by such L/C Issuer of any requirement that exists for such L/C Issuer’s protection and not the protection of the Borrower or any waiver by such L/C Issuer which does not in fact materially prejudice the Borrower;

(v) honor of a demand for payment presented electronically even if such Letter of Credit requires that demand be in the form of a draft;

(vi) any payment made by such L/C Issuer in respect of an otherwise complying item presented after the date specified as the expiration date of, or the date by which documents must be received under such Letter of Credit if presentation after such date is authorized by the UCC, the ISP;

(vii) any payment by such L/C Issuer under such Letter of Credit against presentation of a draft or certificate that does not strictly comply with the terms of such Letter of Credit; or any payment made by such L/C Issuer under such Letter of Credit to any Person purporting to be a trustee in bankruptcy, debtor-in-possession, assignee for the benefit of creditors, liquidator, receiver or other representative of or successor to any beneficiary or any transferee of such Letter of Credit, including any arising in connection with any proceeding under any Debtor Relief Law; or

(viii) any other circumstance or happening whatsoever, whether or not similar to any of the foregoing, including any other circumstance that might otherwise constitute a defense available to, or a discharge of, the Borrower or any of its Subsidiaries.

The Borrower shall promptly examine a copy of each Letter of Credit and each amendment thereto that is delivered to it and, in the event of any claim of noncompliance with the Borrower’s instructions or other irregularity, the Borrower will immediately notify the applicable L/C Issuer. The Borrower shall be conclusively deemed to have waived any such claim against such L/C Issuer and its correspondents unless such notice is given as aforesaid.

(f) Role of L/C Issuer . Each Lender and the Borrower agree that, in paying any drawing under a Letter of Credit, the applicable L/C Issuer shall not have any responsibility to obtain any document (other than any sight draft, certificates and documents expressly required by the Letter of Credit) or to ascertain or inquire as to the validity or accuracy of any such document or the authority of the Person executing or delivering any such document. None of such L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of such L/C Issuer shall be liable to any Lender for (i) any action taken or omitted in connection herewith at the request or with the approval of the Revolving Lenders or the Required Revolving Lenders, as applicable; (ii) any action taken or omitted in the absence of gross negligence or willful misconduct; or (iii) the due execution, effectiveness, validity or enforceability of any document or instrument related to any Letter of

 

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Credit or Issuer Document. The Borrower hereby assumes all risks of the acts or omissions of any beneficiary or transferee with respect to its use of any Letter of Credit; provided , that this assumption is not intended to, and shall not, preclude the Borrower from pursuing such rights and remedies as it may have against the beneficiary or transferee at law or under any other agreement. None of such L/C Issuer, the Administrative Agent, any of their respective Related Parties nor any correspondent, participant or assignee of such L/C Issuer shall be liable or responsible for any of the matters described in clauses   (i) through ( viii)  of Section   2.03(e) ; provided , that anything in such clauses to the contrary notwithstanding, the Borrower may have a claim against such L/C Issuer, and such L/C Issuer may be liable to the Borrower, to the extent, but only to the extent, of any direct, as opposed to consequential or exemplary, damages suffered by the Borrower which the Borrower proves (as determined by a final non-appealable judgment of a court of competent jurisdiction) were caused by such L/C Issuer’s willful misconduct, gross negligence or such L/C Issuer’s willful failure to pay under any Letter of Credit after the presentation to it by the beneficiary of a sight draft and certificates strictly complying with the terms and conditions of a Letter of Credit. In furtherance and not in limitation of the foregoing, such L/C Issuer may accept documents that appear on their face to be in order, without responsibility for further investigation, regardless of any notice or information to the contrary, and such L/C Issuer shall not be responsible for the validity or sufficiency of any instrument transferring or assigning or purporting to transfer or assign a Letter of Credit or the rights or benefits thereunder or proceeds thereof, in whole or in part, which may prove to be invalid or ineffective for any reason. Each L/C Issuer may send a Letter of Credit or conduct any communication to or from the beneficiary via the Society for Worldwide Interbank Financial Telecommunication (“SWIFT”) message or overnight courier, or any other commercially reasonable means of communicating with a beneficiary.

(g) Applicability of ISP . Unless otherwise expressly agreed by the applicable L/C Issuer and the Borrower when a Letter of Credit is issued, the rules of the ISP shall apply to each Letter of Credit. Notwithstanding the foregoing, no L/C Issuer shall be responsible to the Borrower for, and no L/C Issuer’s rights and remedies against the Borrower shall be impaired by, any action or inaction of any L/C Issuer required or permitted under any law, order, or practice that is required or permitted to be applied to any Letter of Credit or this Agreement, including the Law or any order of a jurisdiction where any L/C Issuer or the beneficiary is located, the practice stated in the ISP, or in the decisions, opinions, practice statements, or official commentary of the ICC Banking Commission, the Bankers Association for Finance and Trade - International Financial Services Association (BAFT-IFSA), or the Institute of International Banking Law & Practice, whether or not any Letter of Credit chooses such law or practice.

(h) Letter of Credit Fees . The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Revolving Percentage a Letter of Credit fee (the “ Letter of Credit Fee ”) for each Letter of Credit equal to the Applicable Rate with respect to the Revolving Facility times the daily amount available to be drawn under such Letter of Credit. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section   1.06 . Letter of Credit Fees shall be (A) due and payable on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand and (B) computed on a quarterly basis in arrears. If there is any change in the

 

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Applicable Rate during any quarter, the daily amount available to be drawn under each standby Letter of Credit shall be computed and multiplied by the Applicable Rate separately for each period during such quarter that such Applicable Rate was in effect. Notwithstanding anything to the contrary contained herein, upon the request of the Required Revolving Lenders, while any Event of Default exists, all Letter of Credit Fees shall accrue at the Default Rate.

(i) Fronting Fee and Documentary and Processing Charges Payable to L/C Issuer . The Borrower shall pay directly to each L/C Issuer for its own account a fronting fee with respect to each Letter of Credit, at the rate per annum specified in the applicable Fee Letter between the Borrower and such L/C Issuer, computed on the daily amount available to be drawn under such Letter of Credit on a quarterly basis in arrears. Such fronting fee shall be due and payable on the last Business Day of each March, June, September and December in respect of the most recently-ended quarterly period (or portion thereof, in the case of the first payment), commencing with the first such date to occur after the issuance of such Letter of Credit, on the Letter of Credit Expiration Date and thereafter on demand. For purposes of computing the daily amount available to be drawn under any Letter of Credit, the amount of such Letter of Credit shall be determined in accordance with Section   1.06 . In addition, the Borrower shall pay directly to each L/C Issuer for its own account the customary issuance, presentation, amendment and other processing fees, and other standard costs and charges, of such L/C Issuer relating to letters of credit as from time to time in effect. Such customary fees and standard costs and charges are due and payable on demand and are nonrefundable.

(j) Conflict with Issuer Documents . In the event of any conflict between the terms hereof and the terms of any Issuer Document, the terms hereof shall control.

(k) Letters of Credit Issued for Subsidiaries . Notwithstanding that a Letter of Credit issued or outstanding hereunder is in support of any obligations of, or is for the account of, a Subsidiary, the Borrower shall be obligated to reimburse each L/C Issuer hereunder for any and all drawings under such Letter of Credit. The Borrower hereby acknowledges that the issuance of Letters of Credit for the account of Subsidiaries inures to the benefit of the Borrower, and that the Borrower’s business derives substantial benefits from the businesses of such Subsidiaries.

(l) Additional L/C Issuers . From time to time, the Borrower may by notice to the Administrative Agent with the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) and the applicable Revolving Lender designate such Revolving Lender (in addition to Bank of America) to act as an L/C Issuer hereunder. In the event that there shall be more than one L/C Issuer hereunder, each reference to “the L/C Issuer” hereunder with respect to any L/C Issuer shall refer to the person that issued such Letter of Credit and each such additional L/C Issuer shall be entitled to the benefits of this Agreement as an L/C Issuer to the same extent as if it had been originally named as the L/C Issuer hereunder. Promptly after its delivery of any Letter of Credit or any amendment to a Letter of Credit to an advising bank with respect thereto or to the beneficiary thereof, each L/C Issuer (other than Bank of America) will also deliver to the Administrative Agent a true and complete copy of such Letter of Credit or amendment. On the last Business Day of each March, June, September and December (and on such other dates as the Administrative Agent may request), each L/C Issuer shall provide the Administrative Agent a list of all Letters of Credit issued by it that are

 

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outstanding at such time together with such other information as the Administrative Agent may reasonably request.

2.04 Prepayments .

(a) Optional . Subject to the last sentence of this Section   2.04(a) , the Borrower may, upon notice to the Administrative Agent, at any time or from time to time voluntarily prepay any Class or Classes of Loans in whole or in part without premium or penalty; provided that (A) such notice must be received by the Administrative Agent not later than 9:00 a.m. (1) three Business Days prior to any date of prepayment of Eurodollar Rate Loans and (2) on the date of prepayment of Base Rate Loans; (B) any prepayment of Eurodollar Rate Loans shall be in a principal amount of $5,000,000 or a whole multiple of $1,000,000 in excess thereof; and (C) any prepayment of Base Rate Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000 in excess thereof or, in each case, if less, the entire principal amount thereof then outstanding. Each such notice shall specify the date and amount of such prepayment and the Types and Classes of Loans to be prepaid and, if Eurodollar Rate Loans are to be prepaid, the Interest Periods of such Loans. The Administrative Agent will promptly notify each Lender of its receipt of each such notice, and of the amount of such Lender’s ratable portion of such prepayment (based on such Lender’s Applicable Percentage in respect of the relevant Facility). If such notice is given by the Borrower, the Borrower shall make such prepayment and the payment amount specified in such notice shall be due and payable on the date specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied by all accrued interest on the amount prepaid, together with any additional amounts required pursuant to Section   3.05 . Each prepayment of outstanding Term Loans pursuant to this Section   2.04(a) shall be applied (x) to the Class or Classes of Term Loans as directed by the Borrower and (y) to the principal repayment installments thereof as directed by the Borrower, and each such prepayment shall be paid to the Lenders in accordance with their respective Applicable Percentages in respect of each of the relevant Facilities. Notwithstanding anything to the contrary contained herein, any prepayment of the Term B Facility made after the Closing Date but on or prior to the six (6) month anniversary of the Closing Date in connection with a Repricing Event shall be accompanied by the payment of the fee described in Section   2.08(c) . Notwithstanding the foregoing, if such notice of prepayment indicates that such prepayment is to be funded with the proceeds of a new financing that would result in the repayment of all Obligations in connection therewith, the termination of the Loans and Commitments under this Agreement and the release or termination of all Liens securing the Obligations hereunder (a “ New Financing ”), such notice of prepayment may be revoked if such New Financing is not consummated.

(b) Mandatory .

(i) Within ten Business Days after receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds from any Asset Sale or series of related Asset Sales permitted by Section   8.01(d) , (m) , (n) or (o) , the Borrower shall either (1) prepay an aggregate principal amount of Loans or (2) commit to prepay, redeem, purchase, defease or otherwise satisfy other term Indebtedness of the Borrower to the extent permitted by Section 8.05 (and thereafter consummate such prepayment, redemption, purchase, defeasance or satisfaction within an additional 45 days), or any combination of the foregoing in an aggregate amount equal to 100% of such Net Available Proceeds

 

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(with any prepayments of the Loans to be applied as set forth in clauses   (iv) and (vi)  below); provided , that at the election of the Borrower (as notified by the Borrower to the Administrative Agent within ten Business Days following the date of receipt of such Net Available Proceeds of such Asset Sale), the Borrower and its Restricted Subsidiaries may reinvest all or any portion of such Net Available Proceeds in assets that are used or useful in the business of the Borrower and the Restricted Subsidiaries (including by way of merger or Investment) (x) within 365 days following the date of receipt of such Net Available Proceeds of such Asset Sale or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding commitment to use such Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause   (x) , within 180 days after the end of such 365-day period; provided further , however , that any Net Available Proceeds not subject to such legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest the Net Available Proceeds from such Asset Sale as set forth above) shall be immediately applied to the prepayment of the Loans or other term Indebtedness as set forth in this Section   2.04(b)(i) .

(ii) Within ten days after the receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds from any Debt Issuance or incurrence of Credit Agreement Refinancing Indebtedness, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all such Net Available Proceeds (such prepayments to be applied as set forth in clauses   (iv) and (vi)  below).

(iii) Within ten days after the receipt by the Borrower or any Restricted Subsidiary of any Net Available Proceeds of any Casualty Event, the Borrower shall prepay an aggregate principal amount of Loans equal to 100% of all Net Available Proceeds received therefrom (such prepayments to be applied as set forth in clauses   (iv) and (vi)  below); provided , that, with respect to any Net Available Proceeds realized with respect to any such Casualty Event, (A) at the election of the Borrower (as notified by the Borrower to the Administrative Agent within 45 days following the date of receipt of such Net Available Proceeds of such Casualty Event), the Borrower and its Restricted Subsidiaries may reinvest all or any portion of such Net Available Proceeds in the replacement or restoration of any properties or assets in respect of which such Net Available Proceeds were paid or in assets that are used or useful in the business of the Borrower and the Restricted Subsidiaries (including by way of merger or Investment) (x) within 365 days following the date of receipt of such Net Available Proceeds of such Casualty Event or (y) if the Borrower and its Restricted Subsidiaries enter into a legally binding commitment to use such Net Available Proceeds before the expiration of the 365-day period referred to in preceding clause  (x) , within 180 days after the end of such 365-day period; and provided further , however , that any Net Available Proceeds not subject to such legally binding commitment or so reinvested within such 365-day period (as such period may be extended as permitted above) (or, in either case, such earlier date, if any, as the Borrower or such Restricted Subsidiary determines not to reinvest such Net Available Proceeds as set forth above) shall be immediately applied to the prepayment of the Loans as set forth in this Section   2.04(b)(iii ); and provided further , however , that with respect to any such replacement or restoration of property or assets constituting

 

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Collateral, the Borrower shall take all actions specified in Section   6.09 in order that such property or asset shall constitute Collateral upon the acquisition or construction thereof and (B) if the Borrower and its Restricted Subsidiaries are required to apply any such Net Available Proceeds under the applicable Master Lease to any other purpose, such Net Available Proceeds may be applied to such purpose in lieu of making the prepayment of the Loans required by this Section   2.04(b)(iii ); provided however , that any Net Available Proceeds not subject to any such requirements under the applicable Master Lease, or that are subsequently released from such use, shall be immediately applied to the prepayment of the Loans as otherwise set forth in this Section   2.04(b)(iii ).

(iv) Each prepayment of Loans pursuant to the foregoing provisions of this Section   2.04(b) shall be applied first (a) ratably to each Class of Term Loans (or, in the case of New Term Loans, Extended Term Loans and Other Term Loans, on a less than pro rata basis if elected in the applicable Incremental Joinder Agreement, Extension Amendment or Refinancing Amendment) and (b) (x) for the Term A Loans, to the principal repayment installments thereof on a pro rata basis, (y) for the Term B Loans, to the principal repayment installments thereof in forward order of maturity and (z) for any other Class of Term Loans, as set forth for such Class in the applicable Extension Amendment, Refinancing Amendment or Incremental Joinder Agreement and second , to the Revolving Facility in the manner set forth in clause (vi) below; provided that, notwithstanding the foregoing, each prepayment pursuant to Section 2.04(b)(ii) above with the proceeds of Credit Agreement Refinancing Indebtedness shall be applied solely to the applicable Refinanced Debt. Any prepayment of the Term B Facility on or prior to the first anniversary of the Closing Date pursuant to Section   2.04(b)(ii) in connection with a Repricing Event described in clause   (i) of the definition thereof shall be accompanied by the payment of the fee described in Section   2.08(c) .

(v) If for any reason the Total Revolving Outstandings at any time exceed the Revolving Facility at such time, the Borrower shall immediately prepay Revolving Loans and L/C Borrowings and/or Cash Collateralize the L/C Obligations (other than the L/C Borrowings) in an aggregate amount equal to such excess.

(vi) Prepayments of the Revolving Facility made pursuant to this Section   2.04(b) , first , shall be applied ratably to the L/C Borrowings, second , shall be applied ratably to the outstanding Revolving Loans, and, third , shall be used to Cash Collateralize the remaining L/C Obligations; and, in the case of prepayments of the Revolving Facility required pursuant to clauses   ( i ) , (ii)  or (iii) of this Section   2.04(b) , the amount remaining, if any, after the prepayment in full of all L/C Borrowings and Revolving Loans outstanding at such time and the Cash Collateralization of the remaining L/C Obligations in full (the sum of such prepayment amounts, cash collateralization amounts and remaining amount being, collectively, the “ Reduction Amount ”) may be retained by the Borrower for use in the ordinary course of their business. Upon the drawing of any Letter of Credit that has been Cash Collateralized, the funds held as Cash Collateral shall be applied (without any further action by or notice to or from the Borrower or any other Loan Party) to reimburse the applicable L/C Issuer or the Revolving Lenders, as applicable.

 

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(c) If the terms of any agreement, instrument or indenture pursuant to which any Indebtedness (other than the Obligations) pari passu with or junior in right of payment to the Loans is outstanding (or pursuant to which such Indebtedness is guaranteed) require prepayment of such Indebtedness out of the Net Available Proceeds of any Asset Sale unless such Net Available Proceeds are used to prepay other Indebtedness, then, to the extent not otherwise required by this Section   2.04(c) , if the Borrower and the Restricted Subsidiaries shall not have reinvested the Net Available Proceeds thereof as permitted by Section   2.04(b)(i) within the time frame permitted thereby (but prior to the date required to be applied to such Indebtedness), the Loans shall be repaid in an amount not less than the minimum amount that would be required to be prepaid not later than the latest time as, and upon such terms, so that such other Indebtedness will not be required to be prepaid pursuant to the terms of the agreement, indenture or instrument or guarantee governing such other Indebtedness.

(d) Right to Decline Proceeds . The Borrower shall deliver to the Administrative Agent (who will notify each Appropriate Lender) notice signed by a Responsible Officer of each prepayment required under Section   2.04(b) not less than three Business Days prior to the date such prepayment shall be made (each such date, a “ Mandatory Prepayment Date ”). Such notice shall set forth (i) the Mandatory Prepayment Date, (ii) the principal amount of each Class of Loan (or portion thereof) to be prepaid, (iii) the Type of each Loan being prepaid and (iv) the calculation of the amount of such prepayment in reasonable detail. The Administrative Agent will promptly notify each Lender holding the applicable Class of Loans of the contents of the Borrower’s repayment notice and of such Lender’s pro rata share of any repayment. Except for prepayments made pursuant to Section 2.04(b)(ii) , each Term A Lender and each Term B Lender (and each Other Term Lender, Lender of New Term Loans and Extended Term Lender, if permitted by the applicable Refinancing Amendment, Incremental Joinder Agreement or Extension Amendment) may reject all or a portion of its pro rata share of any mandatory repayment of the applicable Class of Term Loans required to be made pursuant to Section   2.04(b) (such declined amounts, the “ Declined Proceeds ”) by providing written notice (each, a “ Rejection Notice ”) to the Administrative Agent and the Borrower no later than 5:00 p.m. (New York City time) on the Business Day after the date of such Lender’s receipt of notice from Administrative Agent regarding such repayment. Each Rejection Notice shall specify the principal amount of the mandatory repayment of Term Loans to be rejected by such Lender. If a Lender fails to deliver such Rejection Notice to the Administrative Agent within the time frame specified above or such Rejection Notice fails to specify the principal amount of the Term Loans to be rejected, any such failure will be deemed an acceptance of the total amount of such mandatory repayment of Term Loans to which such Lender is otherwise entitled. Any Declined Proceeds remaining thereafter shall be retained by the Borrower.

2.05 Termination or Reduction of Commitments .

(a) Optional . The Borrower may, upon notice to the Administrative Agent, terminate the Revolving Facility or the Letter of Credit Sublimit, or from time to time permanently reduce the Revolving Facility or the Letter of Credit Sublimit; provided that (i) any such notice shall be received by the Administrative Agent not later than 9:00 a.m. 3 Business Days prior to the date of termination or reduction, (ii) any such partial reduction shall be in an aggregate amount of $10,000,000 or any whole multiple of $1,000,000 in excess thereof and (iii) the Borrower shall not terminate or reduce (A) the Revolving Facility if, after giving effect thereto and to any

 

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concurrent prepayments hereunder, the Total Revolving Outstandings would exceed the Revolving Facility, or (B) the Letter of Credit Sublimit if, after giving effect thereto, the Outstanding Amount of L/C Obligations not fully Cash Collateralized hereunder would exceed the Letter of Credit Sublimit. Notwithstanding the foregoing, if such notice of reduction indicates that such reduction is to be funded with the proceeds of a New Financing, such notice of reduction may be revoked if such New Financing is not consummated.

(b) Mandatory .

(i) The aggregate Term A Commitments shall be automatically and permanently reduced to zero after giving effect to the Term A Loans borrowed (if any) on the Closing Date.

(ii) The aggregate Term B Commitments shall be automatically and permanently reduced to zero after giving effect to the Term B Loans borrowed (if any) on the Closing Date.

(iii) If after giving effect to any reduction or termination of Revolving Commitments under this Section   2.05 , the Letter of Credit Sublimit exceeds the Revolving Facility at such time, the Letter of Credit Sublimit shall be automatically reduced by the amount of such excess.

(iv) With respect to any New Term Loans, Other Term Facility, Extended Term Facility, Other Revolving Facility or Extended Revolving Facility, the commitments therefor shall be reduced and/or terminated as provided in the applicable Incremental Joinder Agreement, Refinancing Amendment or Extension Amendment.

(c) Application of Commitment Reductions; Payment of Fees . The Administrative Agent will promptly notify the Lenders of any termination or reduction of the Letter of Credit Sublimit or the Revolving Commitment under this Section   2.05 . Upon any reduction of the Revolving Commitments, the Revolving Commitment of each Revolving Lender shall be reduced by such Lender’s Applicable Revolving Percentage of such reduction amount. All fees in respect of the Revolving Facility accrued until the effective date of any termination of the Revolving Facility shall be paid on the effective date of such termination.

2.06 Repayment of Loans .

(a) Term A Loans . The Borrower shall repay to the Term A Lenders on the last Business Day of each calendar quarter from and after June 30, 2016, an amount equal to 1.25% of the aggregate principal amount of the Term A Loans outstanding as of the Closing Date; provided , that (i) such principal repayment installments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.04 , (ii) such principal installments shall be increased as a result of the incurrence of any Increase Term Loans that comprise an increase to the Term A Loans as set forth in the applicable Incremental Joinder Agreement (which shall include such adjustments as are necessary in order to provide for the “fungibility” of such Increase Term Loans) and (iii) the final principal repayment installment of the Term A Loans shall be repaid on the Maturity Date for the Term A Facility and in any

 

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event shall be in an amount equal to the aggregate principal amount of all Term A Loans outstanding on such date.

(b) Term B Loans . The Borrower shall repay to the Term B Lenders on the last Business Day of each calendar quarter from and after June 30, 2016, an amount equal to 0.25% of the aggregate principal amount of the Term B Loans outstanding as of the Closing Date; provided , that (i) such principal repayment installments shall be reduced as a result of the application of prepayments in accordance with the order of priority set forth in Section 2.04 , (ii) such principal installments shall be increased as a result of the incurrence of any Increase Term Loans that comprise an increase to the Term B Loans as set forth in the applicable Incremental Joinder Agreement (which shall include such adjustments as are necessary in order to provide for the “fungibility” of such Increase Term Loans) and (iii) the final principal repayment installment of the Term B Loans shall be repaid on the Maturity Date for the Term B Facility and in any event shall be in an amount equal to the aggregate principal amount of all Term B Loans outstanding on such date.

(c) Revolving Loans . The Borrower shall repay to the Revolving Lenders on the Maturity Date for the Revolving Facility the aggregate principal amount of all Revolving Loans outstanding on such date.

(d) Incremental Term Loans; Extended Term Loans; Other Term Loans . New Term Loans shall mature in installments as specified in the related Incremental Joinder Agreement pursuant to which such New Term Loans were made, subject, however, to Section   2.13(b) . Extended Term Loans shall mature in installments as specified in the applicable Extension Amendment pursuant to which such Extended Term Loans were established, subject, however, to Section   2.15(a) . Other Term Loans shall mature in installments as specified in the related Refinancing Amendment pursuant to which such Other Term Loans were made, subject, however, to Section   2.14(a) .

(e) Extended Revolving Loans; Other Revolving Loans . The Borrower shall repay to the Extending Lenders and the Other Revolving Lenders, as applicable, the aggregate principal amount of all Extended Revolving Loans and Other Revolving Loans outstanding on the Maturity Date for such Extended Revolving Facility or such Other Revolving Facility, as applicable, as specified in the applicable Extension Amendment or Refinancing Amendment.

2.07 Interest .

(a) Subject to the provisions of Section   2.07(b) , (i) each Eurodollar Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof for each Interest Period at a rate per annum equal to the Eurodollar Rate for such Interest Period plus the Applicable Rate for such Facility; and (ii) each Base Rate Loan under a Facility shall bear interest on the outstanding principal amount thereof from the applicable borrowing date at a rate per annum equal to the Base Rate plus the Applicable Rate for such Facility.

(b) (i) If any amount of principal of any Loan is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise,

 

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such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(ii) If any amount (other than principal of any Loan) payable by the Borrower under any Loan Document is not paid when due (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders such amount shall thereafter bear interest at a fluctuating interest rate per annum at all times equal to the Default Rate to the fullest extent permitted by applicable Laws.

(iii) Accrued and unpaid interest on past due amounts (including interest on past due interest) shall be due and payable upon demand.

(c) Interest on each Loan shall be due and payable in arrears on each Interest Payment Date applicable thereto and at such other times as may be specified herein. Interest hereunder shall be due and payable in accordance with the terms hereof before and after judgment, and before and after the commencement of any proceeding under any Debtor Relief Law.

2.08 Fees . In addition to certain fees described in Sections   2.03(h) and ( i ) :

(a) Commitment Fee . The Borrower shall pay to the Administrative Agent for the account of each Revolving Lender in accordance with its Applicable Revolving Percentage, a commitment fee equal to the Applicable Fee Rate times the actual daily amount by which the Revolving Facility exceeds the sum of (i) the Outstanding Amount of Revolving Loans and (ii) the Outstanding Amount of L/C Obligations. The commitment fee shall accrue at all times during the Availability Period, including at any time during which one or more of the conditions in Article   IV is not met, and shall be due and payable quarterly in arrears on the last Business Day of each March, June, September and December, commencing with the first such date to occur after the Closing Date, and on the last day of the Availability Period for the Revolving Facility. The commitment fee shall be calculated quarterly in arrears, and if there is any change in the Applicable Fee Rate during any quarter, the actual daily amount shall be computed and multiplied by the Applicable Fee Rate separately for each period during such quarter that such Applicable Fee Rate was in effect.

(b) Other Fees . The Borrower shall pay to the Arrangers and the Administrative Agent for their own respective accounts fees in the amounts and at the times specified in the Fee Letters. Such fees shall be fully earned when paid and shall not be refundable for any reason whatsoever.

(c) Repricing Fee . If a Repricing Event is consummated on or prior to the six (6) month anniversary of the Closing Date, the Borrower agrees to pay to the Administrative Agent, for the ratable account of (i) each Term B Lender with Term B Loans that are repaid and (ii) each Term B Lender that withholds its consent to such Repricing Event and is replaced or terminated as a Term B Lender under Section   11.13 , a fee in an amount equal to 1.00% of (x) in the case of a Repricing Event described in clause   ( i ) of the definition thereof, the aggregate principal amount of all Term B Loans of such Term B Lender that are prepaid in connection with

 

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such Repricing Event and (y) in the case of a Repricing Event described in clause   (ii) of the definition thereof, the aggregate principal amount of all Term B Loans of such Term B Lender that are so assigned or terminated and repaid under Section   11.13 . Such fees shall be earned, due and payable upon the date of the effectiveness of such Repricing Event.

(d) Term B Loan Closing Fee . On the Closing Date, the Borrower shall pay to the Administrative Agent for the account of each Term B Lender a fee in the amount of 0.25% of the initial aggregate principal amount of the Term B Loans borrowed on the Closing Date.

2.09 Computation of Interest and Fees .

(a) All computations of interest for Base Rate Loans when the Base Rate is determined by Bank of America’s “prime rate” shall be made on the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other computations of fees and interest shall be made on the basis of a 360-day year and actual days elapsed (which results in more fees or interest, as applicable, being paid than if computed on the basis of a 365-day year). Interest shall accrue on each Loan for the day on which the Loan is made, and shall not accrue on a Loan, or any portion thereof, for the day on which the Loan or such portion is paid, provided that any Loan that is repaid on the same day on which it is made shall, subject to Section   2.11(a) , bear interest for one day. Each determination by the Administrative Agent of an interest rate or fee hereunder shall be conclusive and binding for all purposes, absent manifest error.

(b) In the event that the Borrower or the Lenders determine that (i) the Total Net Leverage Ratio as calculated by the Borrower as of any applicable date was inaccurate and (ii) a proper calculation of the Total Net Leverage Ratio would have resulted in higher pricing for such period, the Borrower shall immediately and retroactively be obligated to pay to the Administrative Agent for the account of the applicable Lenders or the applicable L/C Issuer, as the case may be, promptly on demand by the Administrative Agent (or, after the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, automatically and without further action by the Administrative Agent, any Lender or any L/C Issuer), an amount equal to the excess of the amount of interest and fees that should have been paid for such period over the amount of interest and fees actually paid for such period. This paragraph shall not limit the rights of the Administrative Agent, any Lender or any L/C Issuer, as the case may be, under Section 2.03(c)(iv) , 2.03(i) or 2.07(b) or under Article IX .

2.10 Evidence of Debt .

(a) The Credit Extensions made by each Lender shall be evidenced by one or more accounts or records maintained by such Lender and by the Administrative Agent in the ordinary course of business. The accounts or records maintained by the Administrative Agent and each Lender shall be conclusive absent manifest error of the amount of the Credit Extensions made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so record or any error in doing so shall not, however, limit or otherwise affect the obligation of the Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any conflict between the accounts and records maintained by any Lender and the accounts and records of the Administrative Agent in respect of such matters, the accounts and records of the Administrative

 

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Agent shall control in the absence of manifest error. Upon the request of any Lender made through the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the Administrative Agent) a Note, which shall evidence such Lender’s Loans in addition to such accounts or records. Each Lender may attach schedules to its Note and endorse thereon the date, Type (if applicable), amount and maturity of its Loans and payments with respect thereto.

(b) In addition to the accounts and records referred to in Section   2.10(a) , each Lender and the Administrative Agent shall maintain in accordance with its usual practice accounts or records evidencing the purchases and sales by such Lender of participations in Letters of Credit. In the event of any conflict between the accounts and records maintained by the Administrative Agent and the accounts and records of any Lender in respect of such matters, the accounts and records of the Administrative Agent shall control in the absence of manifest error.

2.11 Payments Generally; Administrative Agent’s Clawback .

(a) General . All payments to be made by the Borrower shall be made without condition or deduction for any counterclaim, defense, recoupment or setoff. Except as otherwise expressly provided herein, all payments by the Borrower hereunder shall be made to the Administrative Agent, for the account of the respective Lenders to which such payment is owed, at the Administrative Agent’s Office in Dollars and in immediately available funds not later than 12:00 p.m. on the date specified herein. The Administrative Agent will promptly distribute to each Lender its Applicable Percentage in respect of the relevant Facility (or other applicable share as provided herein) of such payment in like funds as received by wire transfer to such Lender’s Lending Office. All payments received by the Administrative Agent after 12:00 p.m., in the case of payments in Dollars shall in each case be deemed received on the next succeeding Business Day and any applicable interest or fee shall continue to accrue. If any payment to be made by the Borrower shall come due on a day other than a Business Day, payment shall be made on the next following Business Day, and such extension of time shall be reflected on computing interest or fees, as the case may be.

(b) (i) Funding by Lenders; Presumption by Administrative Agent . Unless the Administrative Agent shall have received notice from a Lender prior to the proposed date of any Borrowing of Eurodollar Rate Loans (or, in the case of any Borrowing of Base Rate Loans, prior to 10:00 a.m. on the date of such Borrowing) that such Lender will not make available to the Administrative Agent such Lender’s share of such Borrowing, the Administrative Agent may assume that such Lender has made such share available on such date in accordance with Section   2.02 (or, in the case of a Borrowing of Base Rate Loans, that such Lender has made such share available in accordance with and at the time required by Section   2.02 ) and may, in reliance upon such assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has not in fact made its share of the applicable Borrowing available to the Administrative Agent, then the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith on demand such corresponding amount in immediately available funds with interest thereon, for each day from and including the date such amount is made available to the Borrower to but excluding the date of payment to the Administrative Agent, at (A) in the case of a payment to be made by such Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on

 

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interbank compensation, plus any administrative, processing or similar fees customarily charged by the Administrative Agent in connection with the foregoing, and (B) in the case of a payment to be made by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender shall pay such interest to the Administrative Agent for the same or an overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Lender pays its share of the applicable Borrowing to the Administrative Agent, then the amount so paid shall constitute such Lender’s Loan included in such Borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Lender that shall have failed to make such payment to the Administrative Agent.

(ii) Payments by Borrower; Presumptions by Administrative Agent . Unless the Administrative Agent shall have received notice from the Borrower prior to the time at which any payment is due to the Administrative Agent for the account of the Lenders or any L/C Issuer hereunder that the Borrower will not make such payment, the Administrative Agent may assume that the Borrower has made such payment on such date in accordance herewith and may, in reliance upon such assumption, distribute to the Appropriate Lenders or such L/C Issuer, as the case may be, the amount due. In such event, if the Borrower has not in fact made such payment, then each of the Appropriate Lenders or such L/C Issuer, as the case may be, severally agrees to repay to the Administrative Agent forthwith on demand the amount so distributed to such Lender or such L/C Issuer, in immediately available funds with interest thereon, for each day from and including the date such amount is distributed to it to but excluding the date of payment to the Administrative Agent, at the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation.

A notice of the Administrative Agent to any Lender or the Borrower with respect to any amount owing under this clause   (b) shall be conclusive, absent manifest error.

(c) Failure to Satisfy Conditions Precedent . If any Lender makes available to the Administrative Agent funds for any Loan to be made by such Lender as provided in the foregoing provisions of this Article   II , and such funds are not made available to the Borrower by the Administrative Agent because the conditions to the applicable Credit Extension set forth in Article   IV are not satisfied or waived in accordance with the terms hereof, the Administrative Agent shall return such funds (in like funds as received from such Lender) to such Lender, without interest.

(d) Obligations of Lenders Several . The obligations of the Lenders hereunder to make Loans, to fund participations in Letters of Credit and to make payments pursuant to Section   11.04(c) are several and not joint. The failure of any Lender to make any Loan, to fund any such participation or to make any payment under Section   11.04(c) on any date required hereunder shall not relieve any other Lender of its corresponding obligation to do so on such date, and no Lender shall be responsible for the failure of any other Lender to so make its Loan, to purchase its participation or to make its payment under Section   11.04(c) .

 

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(e) Funding Source . Nothing herein shall be deemed to obligate any Lender to obtain the funds for any Loan in any particular place or manner or to constitute a representation by any Lender that it has obtained or will obtain the funds for any Loan in any particular place or manner.

(f) Insufficient Funds . If at any time insufficient funds are received by and available to the Administrative Agent to pay fully all amounts of principal, L/C Borrowings, interest and fees then due hereunder, such funds shall be applied (i)  first , toward payment of interest and fees then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of interest and fees then due to such parties, and (ii)  second , toward payment of principal and L/C Borrowings then due hereunder, ratably among the parties entitled thereto in accordance with the amounts of principal and L/C Borrowings then due to such parties.

2.12 Sharing of Payments by Lenders . If any Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in respect of (a) Obligations in respect of any the Facilities due and payable to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations due and payable to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time) of payments on account of the Obligations in respect of the Facilities due and payable to all Lenders hereunder and under the other Loan Documents at such time obtained by all the Lenders at such time or (b) Obligations in respect of any of the Facilities owing (but not due and payable) to such Lender hereunder and under the other Loan Documents at such time in excess of its ratable share (according to the proportion of (i) the amount of such Obligations owing (but not due and payable) to such Lender at such time to (ii) the aggregate amount of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Parties at such time) of payment on account of the Obligations in respect of the Facilities owing (but not due and payable) to all Lenders hereunder and under the other Loan Documents at such time obtained by all of the Lenders at such time, then the Lender receiving such greater proportion shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value) participations in the Loans and subparticipations in L/C Obligations of the other Lenders, or make such other adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the Lenders ratably in accordance with the aggregate amount of Obligations in respect of the Facilities then due and payable to the Lenders or owing (but not due and payable) to the Lenders, as the case may be, provided that:

(i) if any such participations or subparticipations are purchased and all or any portion of the payment giving rise thereto is recovered, such participations or subparticipations shall be rescinded and the purchase price restored to the extent of such recovery, without interest; and

(ii) the provisions of this Section 2.12 shall not be construed to apply to (A) any payment made by the Borrower pursuant to and in accordance with the express terms of this Agreement or (B) any payment obtained by a Lender as consideration for the assignment of or sale of a participation in any of its Loans or subparticipations in L/C Obligations to any assignee or participant, other than to

 

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the Borrower or any Subsidiary thereof (as to which the provisions of this Section   2.12 shall apply except in connection with assignments permitted by Section 11.06(l) and purchases of Term Loans permitted by Section 2.16 ).

The Borrower consents to the foregoing and agrees, to the extent it may effectively do so under applicable law, that any Lender acquiring a participation pursuant to the foregoing arrangements may exercise against the Borrower rights of setoff and counterclaim with respect to such participation as fully as if such Lender were a direct creditor of the Borrower in the amount of such participation.

2.13 Incremental Facilities .

(a) Borrower Request . The Borrower may, at any time, or from time to time on one or more occasions, by written notice to the Administrative Agent, request:

(i) the establishment of one or more additional revolving credit commitments with terms and conditions identical to the terms and conditions of any existing Class of Revolving Commitments hereunder (“ Increase Revolving Commitments ”); provided , that, upfront fees may be paid to Lenders providing such Increase Revolving Commitments;

(ii) the establishment of one or more new tranches of revolving credit commitments (a “ New Revolving Commitment ” and, together with any Increase Revolving Commitments, the “ Incremental Revolving Commitments ”);

(iii) the establishment of one or more additional Term Loans with terms and conditions identical to the terms and conditions of any existing Class of Term Loans hereunder (“ Increase Term Loans ” and the related commitments, the “ Increase Term Loan Commitments ”); provided , that, upfront fees or original issue discount may be paid to Lenders providing such Increase Term Loans; and/or

(iv) the establishment of one or more new tranches of term loans (“ New Term Loans ” and the related commitments, “ New Term Loan Commitments ”);

provided , that (x) immediately after giving effect to any such Incremental Revolving Commitments and Incremental Term Loans and the use of proceeds thereof (including any related acquisition or Investment permitted hereunder), on a Pro Forma Basis, (1) the Senior Secured Net Debt to Adjusted Total Assets Ratio would not exceed 0.40 to 1.00 and (2) the Total Net Debt to Adjusted Total Assets Ratio would not exceed 0.60 to 1.00; ( provided , however , that during a Significant Acquisition Period (or if such Incremental Commitments are being incurred in connection with a Significant Acquisition), the Total Net Debt to Adjusted Total Assets Ratio shall not exceed 0.65 to 1.00) ( provided that, for the purposes of such calculation, (A) any such Incremental Revolving Commitments shall be treated as fully drawn and (B) the cash proceeds of such Incremental Revolving Commitments and Incremental Term Loans shall not be taken into account for any cash netting) and (y) any such request for Incremental Term Loan Commitments or

 

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Incremental Revolving Commitments shall be in a minimum amount of $50,000,000. Each such notice shall specify the identity of each Eligible Assignee (and any existing Lender) to whom the Borrower proposes any portion of such Incremental Commitments be allocated and the amounts of such allocations; provided , that (A) any existing Lender approached to provide all or a portion of the Incremental Commitments may elect or decline, in its sole discretion, to provide all or any portion of such Incremental Commitment offered to it and (B) any Eligible Assignee that is not an existing Lender which agrees to make available an Incremental Commitment shall be approved by the Administrative Agent (such approval not to be unreasonably withheld or delayed) (each Incremental Lender or existing Lender which agrees to make available an Incremental Commitment shall be referred to as an “ Incremental Lender ”). Any ratio calculated under this proviso to this clause (a) for purposes of determining the amount of Incremental Revolving Commitments and Incremental Term Loans permitted hereunder shall be calculated subject to Section 1.07 to the extent applicable and, if the proceeds of the relevant Incremental Commitments will be applied to finance a Limited Condition Transaction, compliance with the Senior Secured Net Debt to Adjusted Total Assets Ratio and Total Net Debt to Adjusted Total Assets Ratio will be determined in accordance with Section 1.08 .

(b) Incremental Effective Date . The Incremental Commitments shall be effected by a joinder agreement to this Agreement (an “ Incremental Joinder Agreement ”) and, as appropriate, the other Loan Documents, executed by the Borrower, the Administrative Agent and each Incremental Lender making or providing such Incremental Commitment, reasonably satisfactory to each of them (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the terms and provisions of any Incremental Commitments (and any Loans made in respect thereof)), subject, however, to the satisfaction of the conditions precedent set forth in this Section   2.13 . Each Incremental Joinder Agreement may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent, to effect the provisions of this Section   2.13 . If the Incremental Commitments are provided in accordance with this Section   2.13 , the Borrower shall determine the effective date (each, an “ Incremental Effective Date ”) and the final allocation of such Incremental Commitments. As a condition precedent to any such Incremental Commitments the following shall have been satisfied:

(i) (A) no Event of Default exists or would exist after giving effect to such Incremental Commitments and (B) the representations and warranties of the Borrower and each other Loan Party contained in Article   V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) on and as of the effective date of such Incremental Commitments, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any representation and warranty qualified by “Material Adverse Effect” or “materiality”, true and correct

 

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in all respects) as of such earlier date, and except that for purposes of this Section   2.13 , the representations and warranties contained in Section   5.05 and Section   5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to Sections   7.01(a) and (b) ;

(ii) all fees required to be paid in connection therewith at the time of such effectiveness shall have been paid;

(iii) the Borrower shall deliver or cause to be delivered any legal opinions reasonably requested by the Administrative Agent covering matters similar to those covered in the opinions delivered on the Closing Date;

(iv) an Incremental Joinder Agreement shall have been duly executed and delivered by the Borrower, the Administrative Agent and each applicable Incremental Lender making or providing such Incremental Commitment; and

(v) after giving effect to any such Incremental Revolving Commitments and Incremental Term Loans and the use of proceeds thereof (including any related acquisition or Investment permitted hereunder), the Borrower would be in Pro Forma Compliance with the financial covenants set forth in Section 8.11 as of the last day of the Test Period ended immediately preceding the date of the effectiveness of such Incremental Revolving Commitments or Incremental Term Loans (including the proviso to Section 8.11(b) if applicable) ( provided that, for the purposes of such calculation, (A) any such Incremental Revolving Commitments shall be deemed to be fully drawn and (B) the cash proceeds of such Incremental Revolving Commitments and Incremental Term Loans shall not be taken into account for any cash netting), whether or not the Revolving Facility or the Term A Facility is then in effect; provided that any ratio calculated under this clause (v) shall be calculated subject to Section 1.07 to the extent applicable and, if the proceeds of the relevant Incremental Commitments will be applied to finance a Limited Condition Transaction, compliance with the financial covenants in Section 8.11 will be determined in accordance with Section 1.08 .

Upon the effectiveness of any Incremental Commitment pursuant to this Section   2.13 , any Incremental Lender that was not a Lender hereunder at such time shall become a Lender hereunder. The Administrative Agent shall promptly notify each Lender as to the effectiveness of any Incremental Commitments, and (i) any Incremental Term Loans (to the extent funded) shall be deemed to be Term Loans hereunder, (ii) any Increase Term Loans (to the extent funded) shall be deemed to be Term Loans of the applicable Class hereunder, (iii) any Incremental Revolving Commitments shall be deemed to be Revolving Commitments hereunder and (iv) any Increase Revolving Commitments shall be deemed to be Revolving Commitments of the applicable Class hereunder. Notwithstanding anything to the contrary contained herein, the Borrower and the Administrative Agent may (and the Administrative Agent is authorized by each Lender to) execute such amendments and/or amendments and restatements of any Loan Documents as may be necessary or advisable to effectuate the provisions of this Section   2.13 .

 

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Notwithstanding anything to the contrary in this Section 2.13 or in any other provisions of any Loan Document, if the proceeds of any Incremental Term Loan Commitments are intended to be applied to finance an acquisition and the Lenders or additional Lenders providing such Incremental Term Loan Commitments so agree, the availability thereof may be subject to customary “SunGard” or “certain funds” conditionality; provided that in any event such Incremental Term Loan Commitments shall be subject to there being no Default or Event of Default under Section 9.01(a) or (i) on the effective date thereof.

(c) Terms of Incremental Commitments and Loans . The terms and provisions of the Incremental Commitments and Loans made pursuant thereto shall be as follows:

(i) the terms and provisions of any Increase Revolving Commitments shall be substantially identical to the terms of the existing Revolving Commitments of the relevant Class; provided , however , that upfront fees may be paid to Lenders providing such Increase Revolving Commitments as agreed by such Lenders and the Borrower. Interest Periods applicable to Revolving Loans advanced pursuant to Incremental Revolving Commitments may, at the election of the Administrative Agent and the Borrower, be made with Interest Period(s) identical to the Interest Period(s) applicable to existing Revolving Loans of the applicable Class (and allocated to such Interest Period(s) on a proportional basis);

(ii) the maturity date of any New Revolving Commitments shall not be earlier than the Maturity Date of the Closing Date Revolving Facility and such New Revolving Commitments shall not have any scheduled commitment reductions or amortization prior to the Maturity Date of the Closing Date Revolving Facility;

(iii) the terms and provisions of Increase Term Loans shall be substantially identical to the existing Term Loans of the relevant Class, with appropriate adjustments to the amortization schedule set forth in Section 2.06(a) and/or Section 2.06(b) , as applicable, to address such Increase Term Loans (which shall in any event include such adjustments as necessary to provide for the “fungibility” of such Increase Term Loans with the existing Term Loans of such Class); provided , however , that upfront fees or original issue discount may be paid to Lenders providing such Increase Term Loans as agreed by such Lenders and the Borrower. Interest Periods applicable to Increase Term Loans may, at the election of the Administrative Agent and the Borrower, be made with Interest Period(s) identical to the Interest Period(s) applicable to existing Term Loans of the relevant Class (and allocated to such Interest Period(s) on a proportional basis); provided , further , that the Weighted Average Life to Maturity and maturity date of any Increase Term Loans that are of the same Class as the Term A Facility or of any prior New Term Loans that were incurred as “term A loans” shall be subject to clauses (v) and (vii) below, respectively;

(iv) the Weighted Average Life to Maturity of any Class of New Term Loans that are “term B loans” shall be no shorter than the Weighted Average Life

 

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to Maturity of the Term B Facility as of the effective date of such Class of New Term Loans;

(v) the Weighted Average Life to Maturity of any Class of New Term Loans that are “term A loans” shall be no shorter than the Weighted Average Life to Maturity of the Term B Facility as of the effective date of such Class of New Term Loans; provided that an aggregate amount of up to $200,000,000 of (A) New Term Loans that are “term A loans” and (B) Increase Term Loans that are of the same Class as the Term A Facility or of any prior New Term Loans that were incurred as “term A loans” may have a Weighted Average Life to Maturity shorter than the Term B facility as of the effective date of such Class of New Term Loans but in no event shorter than the Term A Facility as of the effective date of such Class of New Term Loans;

(vi) the maturity date of any New Term Loans that are “term B loans” shall not be earlier than the Maturity Date of the Term B Facility;

(vii) the maturity date of any New Term Loans that are “term a loans” shall not be earlier than the Maturity Date of the Term B Facility; provided that an aggregate amount of up to $200,000,000 of (A) New Term Loans that are “term A loans” and (B) Increase Term Loans that are of the same Class as the Term A Facility or of any prior New Term Loans that were incurred as “term A loans” may have a maturity date earlier than the Term B facility but in no event may such New Term Loans have a maturity date earlier than the Term A Facility;

(viii) the commitment fees and yield applicable to the New Revolving Commitments shall be determined by the Borrower and the applicable Lenders and shall be set forth in each applicable Incremental Joinder Agreement;

(ix) the yield applicable to any Incremental Term Loans shall be determined by the Borrower and the applicable Lenders and shall be set forth in each applicable Incremental Joinder Agreement; provided , that, with respect to existing Term B Loans only, the yield applicable to Incremental Term Loans that are “term B loans” shall not be greater than the yield payable with respect to existing Term B Loans pursuant to the terms of this Agreement (as amended through the date of such calculation with respect to existing Term B Loans), plus 50 basis points per annum unless the interest rate margins with respect to the existing Term B Loans are increased so as to cause the then applicable yield on the existing Term B Loans under this Agreement to equal the yield then applicable to such Incremental Term Loans that are “term B loans” minus 50 basis points; provided , further , that in determining the applicable yield: (w) original issue discount or upfront fees paid by the Borrower in connection with the Term B Loans incurred on the Closing Date, as applicable, or such Incremental Term Loans on the closing date thereof (based on a four-year average life to maturity), shall be included, (x) any amendments to the Applicable Rate for the Term B Loans that became effective subsequent to the Closing Date but prior to the time of the addition of such Incremental Term Loans shall be included, (y)

 

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arrangement, commitment, structuring and underwriting fees and any amendment fees paid or payable to the Arrangers (or their Affiliates) in their respective capacities as such in connection with the Term B Loans incurred on the Closing Date, as applicable, or to one or more arrangers (or their Affiliates) in their capacities as such applicable to such Incremental Term Loans shall be excluded and (z) if such Incremental Term Loans include any “LIBOR” interest rate floor greater than that applicable to the existing Term B Loans and such “LIBOR” floor is applicable at the time such Incremental Term Loans are incurred, such excess amount shall be equated to interest margin for determining the increase; provided further , the Borrower and the Administrative Agent shall determine the yield payable with respect to Term B Loans and each Class of such Incremental Term Loans for purposes of the foregoing calculation and such determination shall be conclusive absent manifest error;

(x) New Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any optional or mandatory prepayments or prepayment of Term Loans hereunder; and

(xi) except as expressly provided in clauses (i) through (x) above, any New Revolving Commitments and New Term Loans shall have terms, covenants and events of default that, taken as a whole, are no more favorable (as reasonably determined by the Borrower in good faith) to the Lenders providing such new Revolving Commitments and New Term Loans than those under the Closing Date Revolving Facility, Term A Facility or Term B Facility, as applicable, except for those terms, covenants and events of default applicable solely after the then-latest Maturity Date under the Closing Date Revolving Commitments, Term A Facility and Term B Facility.

(d) Equal and Ratable Benefit . The Loans and Commitments established pursuant to this Section   2.13 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranty and the security interests created by the Collateral Documents. The Loan Parties shall take any actions reasonably required by the Administrative Agent to ensure and/or demonstrate that the Lien and security interests granted by the Collateral Documents continue to be perfected under the UCC or otherwise after giving effect to the establishment of any Incremental Commitments or the funding of Loans thereunder.

(e) Reallocations . Upon the effectiveness of any Incremental Revolving Commitments pursuant to this Section 2.13 , (x) each Revolving Lender immediately prior to the relevant Incremental Effective Date will automatically and without further act be deemed to have assigned to each Incremental Lender providing a portion of such Incremental Revolving Commitment (each, an “ Incremental Revolving Lender ”), and each such Incremental Revolving Lender will automatically and without further act be deemed to have assumed, a portion of such Revolving Lender’s participations hereunder in outstanding Letters of Credit (but not, for the avoidance of doubt, the related Revolving Commitments) such that, after giving effect to each such deemed assignment and assumption of participations, the percentage

 

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of the aggregate outstanding participations hereunder in Letters of Credit held by each Revolving Lender (including each such Incremental Revolving Lender) will equal the percentage of the aggregate Revolving Commitments of all Revolving Lenders represented by such Revolving Lender’s Revolving Commitment and (y) in the case of the provision of any Increase Revolving Commitments, the Borrower shall prepay any Revolving Loans of the applicable Class held by Revolving Lenders immediately prior to the relevant Incremental Effective Date with proceeds of such Increase Revolving Commitments (which may be effected through assignments of funded Revolving Loans of such Class from Revolving Lenders immediately prior to such increase to the relevant Incremental Lenders), as directed by the Administrative Agent such that after giving effect to such prepayment or assignments the percentage of the aggregate outstanding Revolving Loans of such Class held by each Revolving Lender holding Revolving Commitments of such Class (including Incremental Lenders holding Increase Revolving Commitments of such Class) will equal the percentage of the aggregate Revolving Commitments of such Class of all Revolving Lenders holding Revolving Commitments of such Class (including Incremental Lenders with Increase Revolving Commitments of such Class) represented by such Revolving Lender’s Revolving Commitment of such Class (including Increase Revolving Commitments of such Class). In addition, in connection with the incurrence of any Increase Term Loans, the Administrative Agent is hereby authorized to make such adjustments necessary to ensure that such Increase Term Loans are included ratably in each applicable Term Borrowing and each Lender’s Applicable Percentage of the applicable Class of Term Loans is adjusted to reflect the increased size of such Class. The Administrative Agent and the Lenders hereby agree that the minimum borrowing, pro rata borrowing and pro rata payment requirements contained elsewhere in this Agreement shall not apply to the transactions effected pursuant to the immediately preceding sentences, and such transactions shall not be required to be effected in accordance with Section 11.06 . For the avoidance of doubt, Revolving Loans and participations in Letters of Credit assigned pursuant to this Section 2.13(e) shall, upon receipt thereof by the relevant Incremental Revolving Lenders, be deemed to be Revolving Loans and participations in Letters of Credit in respect of the Incremental Revolving Commitments acquired by such Incremental Revolving Lenders on the applicable Incremental Effective Date, and the terms of such Revolving Loans and participation interests (including without limitation the interest rate and maturity applicable thereto) shall be adjusted accordingly. The Letter of Credit Sublimit may be increased as part of any Incremental Revolving Commitments in an amount not to exceed the amount of such Incremental Revolving Commitments, subject to consent of each L/C Issuer.

(f) Conflicting Provisions . This Section shall supersede any provisions in Section   2.12 or Section   11.01 to the contrary.

2.14 Refinancing Amendments .

(a) At any time after the Closing Date, the Borrower may obtain Credit Agreement Refinancing Indebtedness advanced hereunder in respect of all or any portion of the Term Loans and the Revolving Loans (or unused Revolving Commitments) of any Class then outstanding under this Agreement, in the form of one or more Classes of Other Term Loans, Other Term Commitments, Other Revolving Loans or Other Revolving Commitments pursuant to a Refinancing Amendment; provided that, notwithstanding anything to the contrary in this

 

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Section   2.14 or otherwise, (1) the borrowing and repayment (except for (A) payments of interest and fees at different rates on Other Revolving Commitments (and related outstandings), (B) repayments required upon the maturity date of the Other Revolving Commitments and (C) repayment made in connection with a permanent repayment and termination of commitments (subject to clause   (3) below)) of Loans with respect to Other Revolving Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments, (2) the permanent repayment of Revolving Loans with respect to, and termination of, Other Revolving Commitments after the date of obtaining any Other Revolving Commitments shall be made on a pro rata basis with all other Revolving Commitments, except that the Borrower shall be permitted to permanently repay and terminate commitments of any such Class on a better than a pro rata basis as compared to any other Class with a later maturity date than such Class and (3) assignments and participations of Other Revolving Commitments and Other Revolving Loans shall be governed by the same assignment and participation provisions applicable to the existing Revolving Commitments and Revolving Loans. The effectiveness of any Refinancing Amendment shall be subject to the satisfaction on the date thereof of each of the conditions set forth in Section   4.02 , and to the extent reasonably requested by the Administrative Agent, receipt by the Administrative Agent of legal opinions reasonably requested by the Administrative Agent relating to the matters described above covering matters similar to those covered in the opinions delivered on the Closing Date. No Lender shall have any obligation to participate in any Refinancing Amendment. Each issuance of Credit Agreement Refinancing Indebtedness under this Section   2.14(a) shall be in an aggregate principal amount that is (x) not less than $5,000,000 and (y) an integral multiple of $1,000,000 in excess thereof.

(b) The Administrative Agent shall promptly notify each Lender as to the effectiveness of each Refinancing Amendment. Each of the parties hereto hereby agrees that, upon the effectiveness of any Refinancing Amendment, this Agreement shall be deemed amended to the extent (but only to the extent) necessary to reflect the existence and terms of the Credit Agreement Refinancing Indebtedness incurred pursuant thereto (including any amendments necessary to treat the Loans and Commitments subject thereto as a Class of Other Term Loans, Other Revolving Loans, Other Term Commitments and Other Revolving Commitments, as applicable). Any Refinancing Amendment may, without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section   2.14 .

(c) The Loans and Commitments established pursuant to this Section 2.14 shall constitute Loans and Commitments under, and shall be entitled to all the benefits afforded by, this Agreement and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranties and the Liens created by the Collateral Documents. The Loan Parties shall take any actions reasonably requested by the Administrative Agent to ensure and/or demonstrate that the Liens and security interests granted by the Collateral Documents continue to secure all Obligations and continue to be perfected under the UCC or otherwise after giving effect to the applicable Refinancing Amendment.

(d) To the extent the Revolving Commitments are being refinanced on the effective date of any Refinancing Amendment, then each of the Revolving Lenders having a Revolving

 

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Commitment prior to the effective date of such Refinancing Amendment (such Revolving Lenders the “ Pre-Refinancing Revolving Lenders ”) shall assign or transfer to any Revolving Lender which is acquiring an Other Revolving Commitment on the effective date of such amendment (the “ Post-Refinancing Revolving Lenders ”), and such Post-Refinancing Revolving Lenders shall purchase from each such Pre-Refinancing Revolving Lender, at the principal amount thereof, such interests in Revolving Loans and participation interests in Letters of Credit (but not, for the avoidance of doubt, the related Revolving Commitments) outstanding on the effective date of such Refinancing Amendment as shall be necessary in order that, after giving effect to all such assignments or transfers and purchases, such Revolving Loans and participation interests in Letters of Credit will be held by Pre-Refinancing Revolving Lenders and Post-Refinancing Revolving Lenders ratably in accordance with their Revolving Commitments and Other Revolving Commitments, as applicable, after giving effect to such Refinancing Amendment (and after giving effect to any Revolving Loans made on the effective date of such Refinancing Amendment). Such assignments or transfers and purchases shall be made pursuant to such procedures as may be designated by Administrative Agent and shall not be required to be effectuated in accordance with Section 11.06 . For the avoidance of doubt, Revolving Loans and participation interests in Letters of Credit assigned or transferred and purchased pursuant to this Section 2.14(d) shall, upon receipt thereof by the relevant Post-Refinancing Revolving Lenders, be deemed to be Other Revolving Loans and participation interests in Letters of Credit in respect of the relevant Class of Other Revolving Commitments acquired by such Post-Refinancing Revolving Lenders on the relevant amendment effective date and the terms of such Revolving Loans and participation interests (including, without limitation, the interest rate and maturity applicable thereto) shall be adjusted accordingly.

(e) This Section shall supersede any provisions in Section   2.12 , Section   11.01 or Section   11.08 to the contrary.

2.15 Extensions of Loans and Commitments .

(a) The Borrower may, at any time request that all or a portion of the Term Loans of any Class (an “ Existing Term Loan Class ”) be modified to constitute another Class of Term Loans in order to extend the scheduled final maturity date thereof (any such Term Loans which have been so modified, “ Extended Term Loans ”) and to provide for other terms consistent with this Section   2.15 . In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Term Loan Class) (a “ Term Loan Extension Request ”) setting forth the proposed terms of the Extended Term Loans to be established, which terms shall be identical to those applicable to the Term Loans of the Existing Term Loan Class from which they are to be modified except (i) the scheduled final maturity date shall be extended to the date set forth in the applicable Extension Amendment, (ii) (A) the yield with respect to such Extended Term Loans may be higher or lower than the yield for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased yield contemplated by the preceding clause   (A) , in each case, to the extent provided in the applicable Extension Amendment, (iii) any Extended Term Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis) in any optional or mandatory prepayments

 

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or prepayment of Term Loans hereunder in each case as specified in the respective Extension Amendment, (iv) the amortization schedule set forth in Section   2.06 or the applicable Incremental Joinder Agreement or Refinancing Amendment applicable to such Existing Term Loan Class shall be adjusted to reflect the scheduled final maturity date of such Extended Term Loans and the amortization schedule (including the principal amounts payable pursuant thereto) in respect of such Extended Term Loans set forth in the applicable Extension Amendment; provided , that the Weighted Average Life to Maturity of such Extended Term Loans shall be no shorter than the Weighted Average Life to Maturity of the Term Loans of such Existing Term Loan Class and (v) the covenants set forth in Section   8.11 may be modified in a manner acceptable to the Borrower, the Administrative Agent and the Lenders party to the applicable Extension Amendment, such modifications to become effective only after the Final Maturity Date of the applicable Existing Term Loan Class in effect immediately prior to giving effect to such Extension Amendment (it being understood that each Lender providing Extended Term Loans, by executing an Extension Amendment, agrees to be bound by such provisions and waives any inconsistent provisions set forth in Section   2.12 or Section   11.08 ). Each Lender holding Extended Term Loans shall be entitled to all the benefits afforded by this Agreement (including, without limitation, the provisions set forth in Section   2.04(a) and 2.04(b)(iv) applicable to Term Loans) and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranties and the Liens created by the Collateral Documents. The Loan Parties shall take any actions reasonably requested by the Administrative Agent to ensure and/or demonstrate that the Liens and security interests granted by the Collateral Documents continue to secure all Obligations and continue to be perfected under the UCC or otherwise after giving effect to the extension of any Term Loans. No Lender shall have any obligation to agree to have any of its Term Loans of any Existing Term Loan Class modified to constitute Extended Term Loans pursuant to any Term Loan Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the Existing Term Loan Class from which they were modified.

(b) The Borrower may, at any time request that all or a portion of the Revolving Commitments of any Class (an “ Existing Revolving Class ” and any related Revolving Loans thereunder, “ Existing Revolving Loans ”) be modified to constitute another Class of Revolving Commitments in order to extend the termination date thereof (any such Revolving Commitments which have been so modified, “ Extended Revolving Commitments ” and any related Revolving Loans, “ Extended Revolving Loans ”) and to provide for other terms consistent with this Section   2.15 . In order to establish any Extended Revolving Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Existing Revolving Class) (a “ Revolving Extension Request ”) setting forth the proposed terms of the Extended Revolving Commitments to be established, which terms shall be identical to those applicable to the Revolving Commitments of the Existing Revolving Class from which they are to be modified except (i) the scheduled termination date of such Extended Revolving Commitments and the related scheduled maturity date of the related Extended Revolving Loans shall be extended to the date set forth in the applicable Extension Amendment, (ii) (A) the yield with respect to such Extended Revolving Loans may be higher or lower than the yield for the Revolving Loans of such Existing Revolving Class and/or (B) additional fees may be payable to the Lenders providing such Extended Revolving Commitments in addition to or in lieu of any increased yield contemplated by the preceding clause   (A) , in each case, to the extent provided in the

 

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applicable Extension Amendment, (iii) the Applicable Fee Rate with respect to such Extended Revolving Commitments may be higher or lower than the Applicable Fee Rate for the Revolving Commitments of such Existing Revolving Class and (iv) the financial covenants set forth in Section   8.11 may be modified in a manner acceptable to the Borrower, the Administrative Agent and the Lenders party to the applicable Extension Amendment, such modifications to become effective only after the Final Maturity Date of the applicable Existing Revolving Class in effect immediately prior to giving effect to such Extension Amendment (it being understood that each Lender providing Extended Revolving Commitments, by executing an Extension Amendment, agrees to be bound by such provisions and waives any inconsistent provisions set forth in Section   2.12 or Section   11.08 ). Each Lender holding Extended Revolving Commitments shall be entitled to all the benefits afforded by this Agreement (including, without limitation, the provisions set forth in Section   2.04(a) and 2.04(b)(iv) applicable to Existing Revolving Loans) and the other Loan Documents, and shall, without limiting the foregoing, benefit equally and ratably from the Guaranties and security interests created by the Collateral Documents. The Loan Parties shall take any actions reasonably requested by the Administrative Agent to ensure and/or demonstrate that the Liens and security interests granted by the Collateral Documents continue to secure all Obligations and continue to be perfected under the UCC or otherwise after giving effect to the extension of any Revolving Commitments. No Lender shall have any obligation to agree to have any of its Revolving Commitments of any Existing Revolving Class modified to constitute Extended Revolving Commitments pursuant to any Revolving Extension Request. Any Extended Revolving Commitments of any Extension Series shall constitute a separate Class of Revolving Commitments from the Existing Revolving Class from which they were modified. If, on any Extension Date, any Revolving Loans of any Extending Lender are outstanding under the applicable Existing Revolving Class, such Revolving Loans (and any related participations) shall be deemed to be allocated as Extended Revolving Loans (and related participations) and Existing Revolving Loans (and related participations) in the same proportion as such Extending Lender’s Extended Revolving Commitments bear to its remaining Revolving Commitments of the Existing Revolving Class. In addition, if so provided in the relevant Extension Amendment and with the consent of the applicable L/C Issuer, participations in Letters of Credit expiring on or after the latest Maturity Date for any Revolving Loans then in effect shall be re-allocated from Lenders of the Existing Revolving Class to Lenders holding Extended Revolving Commitments in accordance with the terms of such Extension Amendment; provided , that such participation interests shall, upon receipt thereof by the relevant Lenders holding Extended Revolving Commitments, be deemed to be participation interests in respect of such Extended Revolving Commitments and the terms of such participation interests (including, without limitation, the commission applicable thereto) shall be adjusted accordingly.

(c) Borrower shall provide the applicable Extension Request at least five Business Days prior to the date on which Lenders under the existing Class are requested to respond. Any Lender wishing to have all or a portion of its Term Loans or Revolving Commitments of the existing Class subject to such Extension Request modified to constitute Extended Loans/Commitments (an “ Extending Lender ”) shall notify the Administrative Agent (an “ Extension Election ”) on or prior to the date specified in such Extension Request of the amount of its Term Loans or Revolving Commitments of the existing Class which it has elected to modify to constitute Extended Loans/Commitments. In the event that the aggregate amount of

 

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Term Loans or Revolving Commitments of the existing Class subject to Extension Elections exceeds the amount of Extended Loans/Commitments requested pursuant to the Extension Request, Term Loans or Revolving Commitments subject to such Extension Elections shall be modified to constitute Extended Loans/Commitments on a pro rata basis based on the amount of Term Loans or Revolving Commitments included in such Extension Elections. The Borrower shall have the right to withdraw any Extension Request upon written notice to the Administrative Agent in the event that the aggregate amount of Term Loans or Revolving Commitments of the existing Class subject to such Extension Request is less than the amount of Extended Loans/Commitments requested pursuant to such Extension Request.

(d) Extended Loans/Commitments shall be established pursuant to an amendment (an “ Extension Amendment ”) to this Agreement. Each Extension Amendment shall be executed by the Borrower, the Administrative Agent and the Extending Lenders (it being understood that such Extension Amendment shall not require the consent of any Lender other than the Extending Lenders with respect to the Extended Loans/Commitments established thereby). An Extension Amendment may, subject to Sections   2.15(a) and (b) , without the consent of any other Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrower, to effect the provisions of this Section   2.15 (including, without limitation, such technical amendments as may be necessary or advisable, in the reasonable opinion of the Administrative Agent and the Borrower, to give effect to the terms and provisions of any Extended Loans/Commitments); provided that each Lender whose Loans or Commitments are affected by such Extension Amendment shall have approved such Extension Amendment.

(e) This Section shall supersede any provisions in Section   2.12 or Section   11.01 to the contrary.

2.16 Reverse Dutch Auction Repurchases .

(a) Notwithstanding anything to the contrary contained in this Agreement or any other Loan Document, the Borrower may, at any time and from time to time after the Closing Date, conduct reverse Dutch auctions in order to purchase Term Loans with respect to any Term Facility (each, an “ Auction ”), each such Auction to be managed exclusively by an investment bank of recognized standing selected by the Borrower following consultation with the Administrative Agent in such capacity (the “ Auction Manager ”), so long as the following conditions are satisfied:

(i) each Auction shall be conducted in accordance with the procedures, terms and conditions set forth in this Section   2.16 and Schedule   2.16 ;

(ii) no Event of Default shall have occurred and be continuing on the date of the delivery of each auction notice and at the time of purchase of any Term Loans in connection with any Auction;

(iii) the minimum principal amount (calculated on the face amount thereof) of all Term Loans that the Borrower offers to purchase in any such

 

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Auction shall be no less than $25,000,000 (unless another amount is agreed to by the Administrative Agent) and the offered purchase price shall be at a discount to par;

(iv) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans so purchased by the Borrower shall automatically be cancelled and retired by the Borrower on the settlement date of the relevant purchase (and may not be resold);

(v) each Auction shall be open and offered to all Lenders of the relevant Term Facility on a pro rata basis and shall be revocable and/or conditional at the Borrower’s option;

(vi) no proceeds of any Revolving Facility shall be used to effect such purchase of Term Loans; and

(vii) at the time of each purchase of Term Loans through an Auction, the Borrower shall have delivered to the Auction Manager and the Administrative Agent an officer’s certificate of a Responsible Officer certifying compliance with preceding clause   (ii) .

(b) With respect to all purchases of Term Loans made by the Borrower pursuant to this Section   2.16 , (x) the Borrower shall pay on the settlement date of each such purchase all accrued and unpaid interest (except to the extent otherwise set forth in the relevant offering documents), if any, on the purchased Term Loan up to, but not including (if paid prior to 12:00 p.m.) the settlement date of such purchase and (y) such purchases (and the payments made by the Borrower and the cancellation of the purchased Term Loans, in each case in connection therewith) shall not constitute voluntary or mandatory payments or prepayments for purposes of this Agreement (including Sections   2.04(a) , 2.04(b) , 2.12 and 11.03 ) (although the par principal amount of Term Loans of the respective Class so purchased pursuant to this Section   2.16 shall be applied to reduce the remaining scheduled amortization payments with respect to such Term Facility of the applicable Lenders being repaid on a pro rata basis).

(c) The Administrative Agent and the Lenders hereby consent to the Auctions and the other transactions contemplated by this Section   2.16 ( provided that no Lender shall have an obligation to participate in any such Auctions) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections   2.04(a) , 2.04(b) , 2.12 and 11.03 (it being understood and acknowledged that purchases of the Term Loans by the Borrower contemplated by this Section   2.16 shall not constitute Investments by the Borrower)) or any other Loan Document that may otherwise prohibit or conflict with any Auction or any other transaction contemplated by this Section   2.16 or result in an Event of Default as a result of the Auction or purchase of Term Loans pursuant to this Section   2.16 . The Auction Manager acting in its capacity as such hereunder shall be entitled to the benefits of the provisions of Article   X and Section   11.04 mutatis mutandis as if each reference therein to the “Administrative Agent” were a reference to the Auction Manager, and the Administrative Agent shall cooperate with the Auction Manager as reasonably requested by the Auction

 

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Manager in order to enable it to perform its responsibilities and duties in connection with each Auction.

2.17 Cash Collateral .

(a) Certain Credit Support Events . If (i) any L/C Issuer has honored any full or partial drawing request under any Letter of Credit and such drawing has resulted in an L/C Borrowing, (ii) as of the Letter of Credit Expiration Date, any L/C Obligation for any reason remains outstanding, (iii) the Borrower shall be required to provide Cash Collateral pursuant to Section 9.02(c) , or (iv) there shall exist a Defaulting Lender, the Borrower shall immediately (in the case of clause (iii) above) or within one Business Day (in all other cases), following any request by the Administrative Agent or the applicable L/C Issuer, provide Cash Collateral in an amount not less than the applicable Minimum Collateral Amount (determined in the case of Cash Collateral provided pursuant to clause (iv) above, after giving effect to Section 2.18 (a)(iv) and any Cash Collateral provided by the Defaulting Lender). If at any time the Administrative Agent determines that any funds held as Cash Collateral are subject to any right or claim of any Person other than the Administrative Agent or that the total amount of such funds is less than the aggregate Outstanding Amount of all L/C Obligations, the Borrower will, forthwith upon demand by the Administrative Agent, pay to the Administrative Agent, as additional funds to be deposited as Cash Collateral, an amount equal to the excess of (x) such aggregate Outstanding Amount over (y) the total amount of funds, if any, then held as Cash Collateral that the Administrative Agent determines to be free and clear of any such right and claim. Upon the drawing of any Letter of Credit for which funds are on deposit as Cash Collateral, such funds shall be applied, to the extent permitted under applicable Laws, to reimburse the applicable L/C Issuer.

(b) Grant of Security Interest . The Borrower, and to the extent provided by any Defaulting Lender, such Defaulting Lender, hereby grants to (and subjects to the control of) the Administrative Agent, for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, and agrees to maintain, a first priority security interest in all such cash, deposit accounts and all balances therein, and all other property so provided as collateral pursuant hereto, and in all proceeds of the foregoing, all as security for the obligations to which such Cash Collateral may be applied pursuant to Section 2.17(c) . If at any time the Administrative Agent determines that Cash Collateral is subject to any right or claim of any Person other than the Administrative Agent or any L/C Issuer or Lender as herein provided, or that the total amount of such Cash Collateral is less than the Minimum Collateral Amount, the Borrower will, promptly upon demand by the Administrative Agent, pay or provide to the Administrative Agent additional Cash Collateral in an amount sufficient to eliminate such deficiency. All Cash Collateral (other than credit support not constituting funds subject to deposit) shall be maintained in one or more blocked, non-interest bearing deposit accounts at Bank of America. The Borrower shall pay on demand therefor from time to time all customary account opening, activity and other administrative fees and charges in connection with the maintenance and disbursement of Cash Collateral.

(c) Application . Notwithstanding anything to the contrary contained in this Agreement, Cash Collateral provided under any of this Section 2.17 or Sections 2.03 , 2.04 , 2.05 , 2.18 or 9.02 in respect of Letters of Credit shall be held and applied to the satisfaction of

 

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the specific L/C Obligations, obligations to fund participations therein (including, as to Cash Collateral provided by a Defaulting Lender, any interest accrued on such obligation) and other obligations for which the Cash Collateral was so provided, prior to any other application of such property as may be provided for herein.

(d) Release . Cash Collateral (or the appropriate portion thereof) provided to reduce Fronting Exposure or to secure other obligations shall be released promptly following (i) the elimination of the applicable Fronting Exposure or other obligations giving rise thereto (including by the termination of Defaulting Lender status of the applicable Lender (or, as appropriate, its assignee following compliance with Section 11.06(b)(vii) )) or (ii) the determination by the Administrative Agent and the applicable L/C Issuers that there exists excess Cash Collateral; provided , however, (x) any such release shall be without prejudice to, and any disbursement or other transfer of Cash Collateral shall be and remain subject to, any other Lien conferred under the Loan Documents and the other applicable provisions of the Loan Documents, and (y) the Person providing Cash Collateral and the applicable L/C Issuers may agree that Cash Collateral shall not be released but instead held to support future anticipated Fronting Exposure or other obligations.

2.18 Defaulting Lenders .

(a) Defaulting Lender Adjustments . Notwithstanding anything to the contrary contained in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender is no longer a Defaulting Lender, to the extent permitted by applicable law:

(i) Defaulting Lender Waterfall . Any payment of principal, interest, fees or other amounts received by the Administrative Agent for the account of such Defaulting Lender (whether voluntary or mandatory, at maturity, pursuant to Article   IX or otherwise) or received by the Administrative Agent from a Defaulting Lender pursuant to Section   9.03 shall be applied at such time or times as may be determined by the Administrative Agent as follows:  first , to the payment of any amounts owing by such Defaulting Lender to the Administrative Agent hereunder; second , to the payment on a pro rata basis of any amounts owing by such Defaulting Lender to each L/C Issuer hereunder; third , to Cash Collateralize each L/C Issuer’s Fronting Exposure with respect to such Defaulting Lender in accordance with Section   2.17 ; fourth , as the Borrower may request (so long as no Default or Event of Default shall have occurred and be continuing), to the funding of any Loan in respect of which such Defaulting Lender has failed to fund its portion thereof as required by this Agreement, as determined by the Administrative Agent; fifth , if so determined by the Administrative Agent and the Borrower, to be held in a deposit account and released pro rata in order to (x) satisfy such Defaulting Lender’s potential future funding obligations with respect to Loans under this Agreement and (y) Cash Collateralize each L/C Issuer’s future Fronting Exposure with respect to such Defaulting Lender with respect to future Letters of Credit issued under this Agreement, in accordance with Section   2.17 ; sixth , to the payment of any amounts owing to the Lenders or the L/C Issuers as a result of any judgment of a court of competent jurisdiction obtained by any Lender or L/C Issuer against such Defaulting Lender as a result

 

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of such Defaulting Lender’s breach of its obligations under this Agreement; seventh , so long as no Default or Event of Default shall have occurred and be continuing, to the payment of any amounts owing to the Borrower as a result of any judgment of a court of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of such Defaulting Lender’s breach of its obligations under this Agreement; and eighth , to such Defaulting Lender or as otherwise directed by a court of competent jurisdiction; provided that if (x) such payment is a payment of the principal amount of any Loans or reimbursement obligations with respect to Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate share, and (y) such Loans were made or the related Letters of Credit were issued at a time when the conditions set forth in Section   4.02 were satisfied or waived, such payment shall be applied solely to pay the Loans of, and reimbursement obligations with respect to Letters of Credit owed to, all Non-Defaulting Lenders on a pro rata basis prior to being applied to the payment of any Loans of, or reimbursement obligations with respect to Letters of Credit owed to, such Defaulting Lender until such time as all Loans and funded and unfunded participations in Letters of Credit are held by the Lenders pro rata in accordance with the applicable Commitments without giving effect to Section   2.18(a)(iii) . Any payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or held) to pay amounts owed by a Defaulting Lender or to post Cash Collateral pursuant to this Section   2.18(a)(i) shall be deemed paid to and redirected by such Defaulting Lender, and each Lender irrevocably consents hereto.

(ii) Certain Fees .

(A) No Defaulting Lender shall be entitled to receive any fee pursuant to Section   2.08(a) for any period during which that Lender is a Defaulting Lender (and the Borrower shall not be required to pay any such fee that otherwise would have been required to have been paid to that Defaulting Lender); provided such Defaulting Lender shall be entitled to receive fees pursuant to Section   2.08 for any period during which that Lender is a Defaulting Lender only to extent allocable to its pro rata portion of the stated amount of Letters of Credit for which it has provided Cash Collateral pursuant to Section   2.17 .

(B) With respect to any fees not required to be paid to any Defaulting Lender pursuant to clause   (A) above, the Borrower shall (x) pay to each Non-Defaulting Lender that portion of any such fee otherwise payable to such Defaulting Lender with respect to such Defaulting Lender’s participation in Letters of Credit that have been reallocated to such Non-Defaulting Lender pursuant to clause   (iii) below, (y) pay to the applicable L/C Issuer the amount of any such fee otherwise payable to such Defaulting Lender to the extent allocable to such L/C Issuer’s Fronting Exposure to such Defaulting Lender, and (z) not be required to pay the remaining amount of any such fee.

 

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(iii) Reallocation of Participations to Reduce Fronting Exposure . All or any part of such Defaulting Lender’s participation in Letters of Credit shall be reallocated among the Non-Defaulting Lenders in accordance with their respective pro rata portion of the L/C Obligations but only to the extent that (x) the conditions set forth in Section   4.02 are satisfied at the time of such reallocation (and, unless the Borrower shall have otherwise notified the Administrative Agent at such time, the Borrower shall be deemed to have represented and warranted that such conditions are satisfied at such time), and (y) such reallocation does not cause the Revolving Exposure of any Non-Defaulting Lender to exceed such Non-Defaulting Lender’s Revolving Commitment. Subject to Section 11.19 , no reallocation hereunder shall constitute a waiver or release of any claim of any party hereunder against a Defaulting Lender arising from that Lender having become a Defaulting Lender, including any claim of a Non-Defaulting Lender as a result of such Non-Defaulting Lender’s increased exposure following such reallocation.

(iv) Cash Collateral . If the reallocation described in clause   (iii) above cannot, or can only partially, be effected, the Borrower shall, without prejudice to any right or remedy available to it hereunder or under law, Cash Collateralize L/C Issuer’s Fronting Exposure in accordance with the procedures set forth in Section   2.17 .

(b) Defaulting Lender Cure . If the Borrower, the Administrative Agent and each L/C Issuer agrees in writing that a Lender is no longer a Defaulting Lender, the Administrative Agent will so notify the parties hereto, whereupon as of the effective date specified in such notice and subject to any conditions set forth therein (which may include arrangements with respect to any Cash Collateral), that Lender will, to the extent applicable, purchase at par that portion of outstanding Loans of the other Lenders or take such other actions as the Administrative Agent may determine to be necessary to cause the Loans and funded and unfunded participations in Letters of Credit to be held pro rata by the Lenders in accordance with the applicable Commitments (without giving effect to Section   2.18(a)(iii) ), whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments will be made retroactively with respect to fees accrued or payments made by or on behalf of the Borrower while that Lender was a Defaulting Lender; and provided further , that except to the extent otherwise expressly agreed by the affected parties, no change hereunder from Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender having been a Defaulting Lender.

(c) New Letters of Credit . So long as any Lender is a Defaulting Lender, no L/C Issuer shall be required to issue, extend, renew or increase any Letter of Credit unless it is satisfied that the participations in any existing Letters of Credit as well as the new, extended, renewed or increased Letter of Credit have been or will be fully allocated among the Non-Defaulting Lenders in a manner consistent with clause   (a)(iii) above and such Defaulting Lender shall not participate therein except to the extent such Defaulting Lender’s participation has been or will be fully Cash Collateralized in accordance with Section   2.17 .

2.19 Additional Borrowers . Upon 30 days’ prior notice to the Administrative Agent

 

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(or such shorter period of time to which the Administrative Agent may agree) and subject to the written consent of the Revolving Lenders, which consent of each Revolving Lender shall not be unreasonably withheld (it being understood that a Revolving Lender shall be deemed to have acted reasonably in withholding its consent if (i) it is unlawful for such Revolving Lender to make Revolving Loans under this Agreement to the proposed additional Borrower, (ii) if such Revolving Lender cannot or has not determined that it is lawful to do so, (iii) the making of a Revolving Loan to the proposed additional Borrower might subject such Lender to adverse tax consequences, (iv) such Lender is required or has determined that it is prudent to register or file in the jurisdiction of formation or organization of the proposed additional Borrower and it does not wish to do so or (v) such Lender is restricted by operational or administrative procedures or other applicable internal policies from extending credit under this Agreement to Persons in the jurisdiction in which the proposed additional Borrower is located), the Borrower may designate one or more Guarantors to be additional joint and several direct borrowers hereunder by written request to the Administrative Agent accompanied by (a) an executed Assumption Agreement and appropriate Notes (to the extent requested by any Lender) executed by the designated Guarantor and the Borrower, (b) a certificate of good standing of the designated Guarantor in the jurisdiction of its incorporation or organization, (c) certified resolutions of such Guarantor’s board of directors or other governing body authorizing the execution and delivery of the Assumption Agreement and such Notes, (d) a written consent to the Assumption Agreement executed by each Guarantor, (e) appropriate written legal opinions reasonably requested by the Administrative Agent with respect to such new Borrower and the Assumption Agreement covering matters similar to those covered in the opinions delivered on the Closing Date and (f) such documentation and other evidence as is reasonably requested by the Administrative Agent or any Lender in order for the Administrative Agent or such Lender to carry out and be satisfied it has complied with the results of all necessary “know your customer” or other similar checks under the USA PATRIOT Act and under similar regulations and is not otherwise prohibited by Law from making Loans to such new Borrower. The Obligations of any additional borrower designated pursuant to this Section 2.19 , in its capacity as a Borrower, may be limited as to amount as directed by the Borrower; provided , however , that any such limitation shall not reduce such Person’s obligations as a Guarantor of the Obligations, if applicable, unless required by a Gaming Authority. The Administrative Agent shall promptly notify the Lenders of such request, together with copies of such of the foregoing as any Lender may request, and upon receipt of the written consents of the Revolving Lenders and satisfaction of the conditions set forth above in this Section, the designated Guarantor shall become a Borrower hereunder.

ARTICLE III

TAXES, YIELD PROTECTION AND ILLEGALITY

3.01 Taxes .

(a) Payments Free of Taxes; Obligation to Withhold; Payments on Account of Taxes .

(i) Any and all payments by or on account of any obligation of any Loan Party hereunder or under any other Loan Document shall to the extent permitted by applicable Laws be made free and clear of and without reduction or withholding for any Taxes. If, however, applicable Laws require a Withholding Agent to withhold or deduct

 

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any Tax, such Tax shall be withheld or deducted in accordance with such Laws as determined by the Withholding Agent in its good faith discretion.

(ii) If the applicable Withholding Agent shall be required by applicable Laws to withhold or deduct any Taxes from any payment, then (A) such Withholding Agent shall withhold or make such deductions as are determined by such Withholding Agent in its good faith discretion, (B) the applicable Withholding Agent shall timely pay the full amount withheld or deducted to the relevant Governmental Authority in accordance with applicable Laws, and (C) to the extent that the withholding or deduction is made on account of Indemnified Taxes, the sum payable by the applicable Loan Party shall be increased as necessary so that after any required withholding or the making of all required deductions (including deductions applicable to additional sums payable under this Section 3.01 ) the applicable Recipient receives an amount equal to the sum it would have received had no such withholding or deduction been made.

(iii) For purposes of this Section 3.01 , the term “Lender” includes any L/C Issuer and the term “applicable Laws” includes FATCA.

(b) Payment of Other Taxes by the Borrower . Without limiting the provisions of clause   (a) above, the Loan Parties shall timely pay any Other Taxes to the relevant Governmental Authority in accordance with applicable Laws.

(c) Tax Indemnifications .

(i) Without limiting the provisions of clause   (a) or (b)  above, the Loan Parties shall, and do hereby, jointly and severally indemnify each Recipient, and shall make payment in respect thereof within 10 days after demand therefor, for the full amount of any Indemnified Taxes (including Indemnified Taxes imposed or asserted on or attributable to amounts payable under this Section 3.01 ) withheld or deducted by a Withholding Agent or paid or payable by such Recipient, and any penalties, interest and reasonable expenses arising therefrom or with respect thereto, whether or not such Indemnified Taxes were correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of any such payment or liability delivered to the Borrower by any Lender (with a copy to the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of any Lender, shall be conclusive absent manifest error.

(ii) Each Lender shall severally indemnify, within 10 days after demand therefor, (A) the Administrative Agent for any Indemnified Taxes attributable to such Lender (but only to the extent that any Loan Party has not already indemnified the Administrative Agent for such Indemnified Taxes and without limiting the obligation of the Loan Parties to do so), (B) the Administrative Agent for any Taxes attributable to such Lender’s failure to comply with the provisions of Section 11.06(e) relating to the maintenance of a Participant Register and (C) the Administrative Agent and the Borrower for any Excluded Taxes attributable to such Lender, in each case, that are payable or paid by the Administrative Agent in connection with any Loan Document, and any reasonable expenses arising therefrom or with respect thereto, whether or not such Taxes were

 

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correctly or legally imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such payment or liability delivered to any Lender by the Administrative Agent or the Borrower (as applicable) shall be conclusive absent manifest error. Each Lender hereby authorizes the Administrative Agent and the Borrower to set off and apply any and all amounts at any time owing to such Lender under any Loan Document or otherwise payable by the Administrative Agent or the Borrower (as applicable) to the Lender from any other source against any amount due to the Administrative Agent or the Borrower (as applicable) under this clause (c)(ii) .

(d) Evidence of Payments . As soon as practicable after any payment of Taxes by any Loan Party to a Governmental Authority as provided in this Section   3.01 , such Loan Party shall deliver to the Administrative Agent the original or a certified copy of a receipt issued by such Governmental Authority evidencing such payment, a copy of any return required by Laws to report such payment or other evidence of such payment reasonably satisfactory to the Administrative Agent.

(e) Status of Lenders; Tax Documentation .

(i) Any Lender that is entitled to an exemption from or reduction of withholding Tax with respect to payments made under any Loan Document shall deliver to the Borrower and the Administrative Agent, at the time or times reasonably requested by the Borrower or the Administrative Agent, such properly completed and executed documentation reasonably requested by the Borrower or the Administrative Agent as will permit such payments to be made without withholding or at a reduced rate of withholding. In addition, any Lender, if reasonably requested by the Borrower or the Administrative Agent, shall deliver such other documentation prescribed by applicable law or reasonably requested by the Borrower or the Administrative Agent as will enable the Borrower or the Administrative Agent to determine whether or not such Lender is subject to backup withholding or information reporting requirements. Notwithstanding anything to the contrary in the preceding two sentences, the completion, execution and submission of such documentation (other than such documentation set forth in Section 3.01(e)(ii)(A) and (ii)(B) and Section 3.01(g) below) shall not be required if in the Lender’s reasonable judgment such completion, execution or submission would subject such Lender to any material unreimbursed cost or expense or would materially prejudice the legal or commercial position of such Lender.

(ii) Without limiting the generality of the foregoing, if the Borrower is resident for tax purposes in the United States,

(A) any Lender that is a U.S. Person shall deliver to the Borrower and the Administrative Agent on or prior to the date on which such Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent) executed copies of IRS Form W-9 certifying that such Lender is exempt from U.S. federal backup withholding tax; and

 

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(B) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), whichever of the following is applicable:

(I) in the case of a Foreign Lender claiming the benefits of an income tax treaty to which the United States is a party (x) with respect to payments of interest under any Loan Document, executed copies of IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “interest” article of such tax treaty and (y) with respect to any other applicable payments under any Loan Document, IRS Form W-8BEN or W-8BEN-E establishing an exemption from, or reduction of, U.S. federal withholding Tax pursuant to the “business profits” or “other income” article of such tax treaty,

(II) executed originals of IRS Form W-8ECI,

(III) in the case of a Foreign Lender claiming the benefits of the exemption for portfolio interest under Section 881(c) of the Code, (x) a certificate substantially in the form of Exhibit E-1 to the effect that such Foreign Lender is not (A) a “bank” within the meaning of Section 881(c)(3)(A) of the Code, (B) a “10 percent shareholder” of the Borrower within the meaning of Section 881(c)(3)(B) of the Code, or (C) a “controlled foreign corporation” described in Section 881(c)(3)(C) of the Code (a “ U.S. Tax Compliance Certificate ”) and (y) executed originals of IRS Form W-8BEN or W-8BEN-E,

(IV) to the extent a Foreign Lender is not the beneficial owner, executed copies of IRS Form W-8IMY, accompanied by IRS Form W-8ECI, IRS Form W-8BEN or W-8BEN-E, a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-2 or Exhibit E-3 , IRS Form W-9, and/or other certification documents from each beneficial owner, as applicable; provided that if the Foreign Lender is a partnership and one or more direct or indirect partners of such Foreign Lender are claiming the portfolio interest exemption, such Foreign Lender may provide a U.S. Tax Compliance Certificate substantially in the form of Exhibit E-4 on behalf of each such direct and indirect partner; and

(C) any Foreign Lender shall, to the extent it is legally entitled to do so, deliver to the Borrower and the Administrative Agent (in such number of copies as shall be requested by the recipient) on or prior to the date on which such Foreign Lender becomes a Lender under this Agreement (and from time to time thereafter upon the reasonable request of the Borrower or the Administrative Agent), executed copies of any other form prescribed by applicable Laws as a

 

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basis for claiming exemption from or a reduction in U.S. federal withholding Tax, duly completed, together with such supplementary documentation as may be prescribed by applicable Laws to permit the Borrower or the Administrative Agent to determine the withholding or deduction required to be made.

(iii) Each Lender agrees that if any form or certification it previously delivered expires or becomes obsolete or inaccurate in any respect, it shall update such form or certification or promptly notify the Borrower and the Administrative Agent in writing of its legal inability to do so.

(f) Treatment of Certain Refunds . If any party determines, in its reasonable discretion, that it has received a refund of any Taxes as to which it has been indemnified pursuant to this Section 3.01 (including by the payment of additional amounts pursuant to this Section 3.01 ), it shall pay to the indemnifying party an amount equal to such refund (including any amount in respect of any such refund that is applied to offset future Taxes payable) (but only to the extent of indemnity payments made under this Section 3.01 with respect to the Taxes giving rise to such refund), net of all out-of-pocket expenses (including Taxes) of such indemnified party and without interest (other than any interest paid by the relevant Governmental Authority with respect to such refund). Such indemnifying party, upon the request of such indemnified party, shall repay to such indemnified party the amount paid over pursuant to this clause (f) (plus any penalties, interest or other charges imposed by the relevant Governmental Authority) in the event that such indemnified party is required to repay such refund to such Governmental Authority. Notwithstanding anything to the contrary in this clause (f) , in no event will the indemnified party be required to pay any amount to an indemnifying party pursuant to this clause (f) the payment of which would place the indemnified party in a less favorable net after-Tax position than the indemnified party would have been in if the Tax subject to indemnification and giving rise to such refund had not been deducted, withheld or otherwise imposed and the indemnification payments or additional amounts with respect to such Tax had never been paid. This clause (f) shall not be construed to require any indemnified party to make available its tax returns (or any other information relating to its Taxes that it deems confidential) to the indemnifying party or any other Person.

(g) FATCA . If a payment made to the Administrative Agent or any Lender under any Loan Document would be subject to U.S. federal withholding Tax imposed by FATCA if the Administrative Agent or such Lender were to fail to comply with FATCA (including those contained in Section 1471(b) or Section 1472(b) of the Code, as applicable), the Administrative Agent or such Lender, as the case may be, shall deliver to the Borrower (and in the case of a Lender, the Administrative Agent) at the time or times prescribed by Law and at such time or times reasonably requested by the Borrower or the Administrative Agent such documentation prescribed by applicable Law (including as prescribed by Section 1471(b)(3)(C)(i) of the Code) and such additional documentation reasonably requested by the Borrower or the Administrative Agent as may be necessary for the Borrower and the Administrative Agent to comply with their obligations under FATCA and to determine that the Administrative Agent or such Lender has complied with the Administrative Agent’s or such Lender’s obligations under FATCA or to determine the amount to deduct and withhold from such payment. Solely for purposes of this clause   (g) , “FATCA” shall include any amendments made to FATCA after the date of this Agreement.

 

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(h) Survival . Each party’s obligations under this Section 3.01 shall survive the resignation or replacement of the Administrative Agent or any assignment of rights by, or the replacement of, a Lender, the satisfaction of the Termination Conditions and the termination of this Agreement.

3.02 Illegality . If any Lender determines that any Law has made it unlawful, or that any Governmental Authority has asserted that it is unlawful, for any Lender or its applicable Lending Office to make, maintain or fund Loans whose interest is determined by reference to the Eurodollar Rate, or to determine or charge interest rates based upon the Eurodollar Rate, or any Governmental Authority has imposed material restrictions on the authority of such Lender to purchase or sell, or to take deposits of, Dollars in the London interbank market, then, on notice thereof by such Lender to the Borrower through the Administrative Agent, (i) any obligation of such Lender to make or continue Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans shall be suspended, and (ii) if such notice asserts the illegality of such Lender making or maintaining Base Rate Loans the interest rate on which is determined by reference to the Eurodollar Rate component of the Base Rate, the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate, in each case until such Lender notifies the Administrative Agent and the Borrower that the circumstances giving rise to such determination no longer exist. Upon receipt of such notice, (x) the Borrower shall, upon demand from such Lender (with a copy to the Administrative Agent), prepay or, if applicable, convert all Eurodollar Rate Loans of such Lender to Base Rate Loans (the interest rate on which Base Rate Loans of such Lender shall, if necessary to avoid such illegality, be determined by the Administrative Agent without reference to the Eurodollar Rate component of the Base Rate), either on the last day of the Interest Period therefor, if such Lender may lawfully continue to maintain such Eurodollar Rate Loans to such day, or immediately, if such Lender may not lawfully continue to maintain such Eurodollar Rate Loans and (y) if such notice asserts the illegality of such Lender determining or charging interest rates based upon the Eurodollar Rate, the Administrative Agent shall during the period of such suspension compute the Base Rate applicable to such Lender without reference to the Eurodollar Rate component thereof until the Administrative Agent is advised in writing by such Lender that it is no longer illegal for such Lender to determine or charge interest rates based upon the Eurodollar Rate. Upon any such prepayment or conversion, the Borrower shall also pay accrued interest on the amount so prepaid or converted.

3.03 Inability to Determine Rates . If the Required Lenders determine that for any reason in connection with any request for a Eurodollar Rate Loan or a conversion to or continuation thereof that (a) Dollar deposits are not being offered to banks in the London interbank eurodollar market for the applicable amount and Interest Period of such Eurodollar Rate Loan, (b) adequate and reasonable means do not exist for determining the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan or in connection with an existing or proposed Base Rate Loan, or (c) the Eurodollar Rate for any requested Interest Period with respect to a proposed Eurodollar Rate Loan does not adequately and fairly reflect the cost to such Lenders of funding such Loan, the Administrative Agent will promptly so notify the Borrower and each Lender. Thereafter, (x) the obligation of the Lenders to make or maintain Eurodollar Rate Loans shall be suspended and (y) in the event of a determination described in the preceding sentence with respect to the Eurodollar Rate component

 

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of the Base Rate, the utilization of the Eurodollar Rate component in determining the Base Rate shall be suspended, in each case until the Administrative Agent (upon the instruction of the Required Lenders) revokes such notice. Upon receipt of such notice, the Borrower may revoke any pending request for a Borrowing of, conversion to or continuation of Eurodollar Rate Loans or, failing that, will be deemed to have converted such request into a request for a Borrowing of Base Rate Loans in the amount specified therein.

3.04 Increased Costs; Reserves on Eurodollar Rate Loans .

(a) Increased Costs Generally . If any Change in Law shall:

(i) impose, modify or deem applicable any reserve (whether for liquidity, capital adequacy or otherwise), special deposit, compulsory loan, insurance charge or similar requirement against assets of, deposits with or for the account of, or credit extended or participated in by, any Lender (except any reserve requirement contemplated by Section   3.04(e) ) or any L/C Issuer;

(ii) subject any Recipient to any Tax of any kind whatsoever with respect to this Agreement, any Letter of Credit, any participation in a Letter of Credit or any Eurodollar Rate Loan made by it, or change the basis of taxation of payments to such Recipient in respect thereof (except for Indemnified Taxes or Other Taxes covered by Section 3.01 and the imposition of, or any change in the rate of, any Excluded Tax payable by such Recipient); or

(iii) impose on any Lender or any L/C Issuer or the London interbank market any other condition, cost or expense affecting this Agreement or Eurodollar Rate Loans made by such Lender or any Letter of Credit or participation therein;

and the result of any of the foregoing shall be to increase the cost to such Lender of making, converting to, continuing or maintaining any Loan the interest on which is determined by reference to the Eurodollar Rate (or of maintaining its obligation to make any such Loan), or to increase the cost to such Lender or such L/C Issuer of participating in, issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such Lender or such L/C Issuer hereunder (whether of principal, interest or any other amount) then, upon request of such Lender or such L/C Issuer, the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer, as the case may be, for such additional costs incurred or reduction suffered; provided that (x) the Borrower shall not be treated less favorably with respect to such amounts than how other similarly situated borrowers of such Lender or L/C Issuer are generally treated (it being understood that this provision shall not be construed to obligate any Lender or L/C Issuer to make available any information that, in its sole discretion, it deems confidential), (y) the Borrower shall not be liable for such compensation if the relevant Change in Law occurs on a date prior to the date such Lender becomes a party hereto and (z) such circumstances in the case of requests for reimbursement under clause (iii) above resulting from a market disruption are not generally affecting the banking market, or the applicable request has not been made by Lenders constituting Required Lenders.

 

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(b) Capital Requirements . If any Lender or any L/C Issuer determines that any Change in Law affecting such Lender or such L/C Issuer or any Lending Office of such Lender or such Lender’s or such L/C Issuer’s holding company, if any, regarding capital or liquidity requirements has or would have the effect of reducing the rate of return on such Lender’s or such L/C Issuer’s capital or on the capital of such Lender’s or such L/C Issuer’s holding company, if any, as a consequence of this Agreement, the Commitments of such Lender or the Loans made by, or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by such L/C Issuer, to a level below that which such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company could have achieved but for such Change in Law (taking into consideration such Lender’s or such L/C Issuer’s policies and the policies of such Lender’s or such L/C Issuer’s holding company with respect to capital adequacy), then from time to time the Borrower will pay to such Lender or such L/C Issuer, as the case may be, such additional amount or amounts as will compensate such Lender or such L/C Issuer or such Lender’s or such L/C Issuer’s holding company for any such reduction suffered; provided that (x) the Borrower shall not be treated less favorably with respect to such amounts than how other similarly situated borrowers of such Lender or L/C Issuer are generally treated (it being understood that this provision shall not be construed to obligate any Lender or L/C Issuer to make available any information that, in its sole discretion, it deems confidential) and (y) the Borrower shall not be liable for such compensation if the relevant Change in Law occurs on a date prior to the date such Lender becomes a party hereto.

(c) Certificates for Reimbursement . A certificate of a Lender or any L/C Issuer setting forth the amount or amounts necessary to compensate such Lender or such L/C Issuer or its holding company, as the case may be, as specified in clause   (a) or (b)  of this Section 3.04 and delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such Lender or such L/C Issuer, as the case may be, the amount shown as due on any such certificate within 30 days after receipt thereof.

(d) Delay in Requests . Failure or delay on the part of any Lender or any L/C Issuer to demand compensation pursuant to the foregoing provisions of this Section 3.04 shall not constitute a waiver of such Lender’s or such L/C Issuer’s right to demand such compensation, provided that the Borrower shall not be required to compensate a Lender or an L/C Issuer pursuant to the foregoing provisions of this Section 3.04 for any increased costs incurred or reductions suffered more than nine months prior to the date that such Lender or such L/C Issuer, as the case may be, notifies the Borrower of the Change in Law giving rise to such increased costs or reductions and of such Lender’s or such L/C Issuer’s intention to claim compensation therefor (except that, if the Change in Law giving rise to such increased costs or reductions is retroactive, then the nine-month period referred to above shall be extended to include the period of retroactive effect thereof).

(e) Reserves on Eurodollar Rate Loans . The Borrower shall pay to each Lender, as long as such Lender shall be required to maintain reserves with respect to liabilities or assets consisting of or including Eurodollar funds or deposits (currently known as “Eurodollar liabilities”), additional interest on the unpaid principal amount of each Eurodollar Rate Loan equal to the actual costs of such reserves allocated to such Loan by such Lender (as determined by such Lender in good faith, which determination shall be conclusive), which shall be due and payable on each date on which interest is payable on such Loan, provided the Borrower shall

 

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have received at least 30 days’ prior notice (with a copy to the Administrative Agent) of such additional interest from such Lender. If a Lender fails to give notice 30 days prior to the relevant Interest Payment Date, such additional interest shall be due and payable 30 days from receipt of such notice.

3.05 Compensation for Losses . Upon written demand of any Lender (with a copy to the Administrative Agent) from time to time, the Borrower shall promptly compensate such Lender for and hold such Lender harmless from any actual loss, cost or expense incurred by it as a result of:

(a) any continuation, conversion, payment or prepayment of any Loan other than a Base Rate Loan on a day other than the last day of the Interest Period for such Loan (whether voluntary, mandatory, automatic, by reason of acceleration, or otherwise);

(b) any failure by the Borrower (for a reason other than the failure of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan other than a Base Rate Loan on the date or in the amount notified by the Borrower;

(c) any failure by the Borrower to make payment of any drawing under any Letter of Credit (or interest due thereon) on its scheduled due date or any payment thereof in a currency other than Dollars; or

(d) any assignment of a Eurodollar Rate Loan on a day other than the last day of the Interest Period therefor as a result of a request by the Borrower pursuant to Section   11.13 ;

including any loss or expense arising from the liquidation or reemployment of funds obtained by it to maintain such Loan or from fees payable to terminate the deposits from which such funds were obtained. A certificate of a Lender setting forth in reasonable detail the amount or amounts necessary to compensate such Lender as specified in this Section 3.05 and delivered to the Borrower shall be conclusive absent manifest error.

3.06 Mitigation Obligations; Replacement of Lenders .

(a) Designation of a Different Lending Office . If any Lender requests compensation under Section   3.04 , or the Borrower is required to pay any additional amount to any Lender, any L/C Issuer, or any Governmental Authority for the account of any Lender or any L/C Issuer pursuant to Section   3.01 , or if any Lender gives a notice pursuant to Section   3.02 , then such Lender or such L/C Issuer shall, as applicable, use reasonable efforts to designate a different Lending Office for funding or booking its Loans hereunder or to assign its rights and obligations hereunder to another of its offices, branches or affiliates, if, in the judgment of such Lender or such L/C Issuer, such designation or assignment (i) would eliminate or reduce amounts payable pursuant to Section   3.01 or 3.04 , as the case may be, in the future, or eliminate the need for the notice pursuant to Section   3.02 , as applicable, and (ii) in each case, would not subject such Lender or such L/C Issuer, as the case may be, to any unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender or such L/C Issuer, as the case may be. The Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender or any L/C Issuer in connection with any such designation or assignment.

 

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(b) Replacement of Lenders . If any Lender requests compensation under Section   3.04 , or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section   3.01 , and in each case, such Lender has declined or is unable to designate a different lending office in accordance with Section 3.06(a) , the Borrower may replace such Lender in accordance with Section   11.13 .

3.07 Survival . All of the Borrower’s obligations under this Article   III shall survive the satisfaction of the Termination Conditions and the termination of this Agreement. Notwithstanding the foregoing, (a) the Borrower shall not be required to make any payments to any Lender under Section   3.01 , 3.02 or 3.04 for any costs or reductions incurred more than nine months prior to the date that such Lender notifies the Borrower of the circumstances giving rise to such costs or reductions and of such Lender’s intention to claim compensation therefor; provided that if the event giving rise to such costs or reductions is given retroactive effect, then the nine month period referred to above shall be extended to include the period of retroactive effect therefor; and (b) the Borrower shall not be obligated to compensate any Lender under Section   3.05 for any such losses, expenses or liabilities attributable to any such circumstance occurring prior to the date that is 30 days prior to the date on which such Lender requested such compensation from the Borrower.

ARTICLE IV

CONDITIONS PRECEDENT TO CREDIT EXTENSIONS

4.01 Conditions of Initial Credit Extension . The obligation of the L/C Issuers and the Lenders to make the initial Credit Extension hereunder is subject to satisfaction of the following conditions precedent:

(a) The Administrative Agent’s receipt of the following, each of which shall be originals or facsimiles unless otherwise specified, each executed by a Responsible Officer on behalf of the signing Loan Party to the extent execution thereof is contemplated thereby (and, if applicable, by the Administrative Agent and/or the Lenders) each dated the Closing Date (or, in the case of certificates of governmental officials, a recent date before the Closing Date) and reasonably satisfactory to the Administrative Agent:

(i) executed counterparts of this Agreement and the Guaranty;

(ii) a Note executed by the Borrower in favor of each Lender requesting a Note;

(iii) (x) a security agreement (together with each other security agreement and security agreement supplement delivered pursuant to Section   6.09 , in each case as amended, the “ Security Agreement ”) and (y) a pledge agreement (together with each other pledge agreement and pledge agreement supplement delivered pursuant to Section   6.09 , in each case as amended, the “ Pledge Agreement ”), in each case duly executed by each Loan Party, together with:

(A) to the extent certificated, certificates representing the “Pledged Equity” referred to therein accompanied by undated stock powers executed in blank,

 

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(B) proper Financing Statements in form appropriate for filing under the Uniform Commercial Code of all jurisdictions that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created under the Security Agreement and the Pledge Agreement, covering the Collateral described in the Security Agreement and the Pledge Agreement,

(C) evidence of the completion of all other searches, actions, recordings and filings of or with respect to the Security Agreement and the Pledge Agreement that the Administrative Agent may deem necessary or desirable in order to perfect the Liens created thereby (including receipt of duly executed payoff letters and UCC-3 termination statements) free and clear of all other Liens other than Permitted Encumbrances and Liens permitted by Section 8.03 , and

(iv) the Mortgages, duly executed and in a form suitable for recordation, along with:

(A) evidence that counterparts of the Mortgages for each of the Initial Real Estate Assets have been duly executed, acknowledged and delivered and are in form suitable for filing or recording in all filing or recording offices that the Administrative Agent may deem necessary in order to create a valid first and subsisting Lien on the property described therein in favor of the Administrative Agent for the benefit of the Secured Parties and that all filing, documentary, stamp, intangible and recording taxes and fees have been paid or shall be paid substantially concurrently with the Closing Date,

(B) for each Mortgaged Real Property, ALTA mortgagee’s title insurance policies, including customary endorsements thereto in favor of Administrative Agent, in an amount and otherwise reasonably acceptable to the Administrative Agent, dated as of the date of recording of such Mortgage,

(C) for each Mortgaged Real Property either (I) a new and current ALTA survey (or equivalent) certified to the Administrative Agent sufficient for the issuers of the title insurance delivered pursuant to Section 4.01(a)(iv)(B) above to remove all standard survey exceptions and issue the customary survey-related endorsements, or (II) the most recent ALTA survey (or equivalent) of such premises, together with an affidavit from the Borrower or the applicable Restricted Subsidiary, as applicable, stating that there has been no change, in each case of clauses (I)  and (II)  such documentation being sufficient for the issuers of such title insurance policies to remove all standard survey exceptions and issue the customary survey-related endorsements,

 

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

(E) evidence of the insurance required by the terms of this Agreement and the other Loan Documents (which evidence the Administrative Agent has received and acknowledges being satisfied with such evidence),

(F) opinions of counsel in customary form and substance confirming that each Mortgage creates a Lien on the Mortgaged Real Property purported to be covered by the related Mortgage, which shall be from local counsel in each state where a Mortgaged Real Property is located covering the enforceability, due authorization, execution and delivery of the relevant Mortgages and any other opinions reasonably requested by Administrative Agent;

(v) such certificates of resolutions or other action, incumbency certificates and/or other certificates of Responsible Officers of each Loan Party as the Administrative Agent may require evidencing the identity, authority and capacity of each such Responsible Officer authorized to act on behalf of each Loan Party in connection with this Agreement and the other Loan Documents;

(vi) such documents and certifications as the Administrative Agent may reasonably require to evidence that each Loan Party is duly organized or formed, validly existing, in good standing and qualified to engage in business in its jurisdiction of organization;

(vii) a favorable opinion of Milbank, Tweed, Hadley & McCloy LLP, counsel to the Loan Parties, and of local counsel to the Loan Parties in each jurisdiction in which the Loan Parties are formed, addressed to the Administrative Agent and each Lender, reasonably satisfactory to the Administrative Agent;

(viii) a certificate signed by a Responsible Officer certifying (A) that the conditions specified in Sections   4.02(a) and (b)  have been satisfied, (B) that there

 

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has been no event or condition since December 31, 2015 that has had or could be reasonably expected to have, either individually or in the aggregate, an MGM Resorts Material Adverse Effect, (C) the accuracy of the representation and warranty set forth in Section 5.16 and the extent of the inquiry made by such Responsible Officer in connection therewith, (D) as to the absence of any action, suit, investigation or proceeding relating to the Transactions pending or, to the knowledge of the Borrower, threatened in any court or before any arbitrator or Governmental Authority that could reasonably be expected to have a Material Adverse Effect and (E) that Parent will elect to be treated as a REIT commencing with its taxable year ending December 31, 2016 and, commencing with its taxable year ending December 31, 2016, Parent will be organized and operate in conformity with the requirements for qualification and taxation as a REIT, and its proposed method of operation will enable Parent to meet the requirements for qualification as a REIT;

(ix) environmental assessment reports in respect of each Mortgaged Real Property reasonably satisfactory to the Administrative Agent (which reports the Administrative Agent has received and acknowledges being satisfied with);

(x) (A) a business plan and budget of the Borrower and its Restricted Subsidiaries on a consolidated basis, including forecasts prepared by management of the Borrower, of consolidated balance sheets and statements of operations and cash flows of the Borrower and its Restricted Subsidiaries on a quarterly basis for the first year following the Closing Date and (B) an unaudited balance sheet of the Borrower and the Restricted Subsidiaries as at December 31, 2015 (including the notes thereto), prepared as if the Transactions had occurred on December 31, 2015, in each case reasonably satisfactory to the Administrative Agent; and

(xi) evidence that the Administrative Agent, on behalf of the Lenders, has been named as an additional insured or loss payee, as the case may be, under all insurance policies maintained with respect to the assets and properties of the Loan Parties that constitute Collateral pursuant to endorsements reasonably satisfactory to the Administrative Agent.

(b) The Administrative Agent shall have received evidence that all indebtedness and other obligations under the Bridge Credit Agreement has been paid in full and all Guarantees and Liens thereunder have been released.

(c) (i) All fees required to be paid to the Administrative Agent and the Arrangers on or before the Closing Date shall concurrently be paid and (ii) all fees required to be paid to the Lenders on or before the Closing Date shall concurrently be paid.

(d) Unless waived by the Administrative Agent, the Borrower shall have paid all Attorney Costs of counsel to the Administrative Agent (directly to such counsel if requested by the Administrative Agent) to the extent invoiced at least three Business Days prior to the Closing Date, plus such additional amounts of such fees, charges and disbursements as shall constitute its reasonable estimate of such fees, charges and disbursements incurred or to be

 

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incurred by it through the closing proceedings ( provided that such estimate shall not thereafter preclude a final settling of accounts between the Borrower and the Administrative Agent).

(e) The Borrower shall have received (or shall receive substantially simultaneously with the initial Credit Extensions hereunder) gross cash proceeds from the sale of $1.05 billion of the Senior Unsecured Notes;

(f) (A) The Reorganization and Contribution (including the entry into each of the Transaction Agreements) shall have occurred in compliance with the Transaction Agreements and all applicable Laws and (B) the Administrative Agent shall have received evidence reasonably satisfactory to it that the Initial Landlord owns 100% of the fee and leasehold real property interest in each Initial Real Estate Asset free and clear of all Liens other than the Liens created under the Collateral Documents and Permitted Encumbrances;

(g) The Initial Landlord shall have entered into the Initial Master Lease with the Tenant and the Initial Master Lease Guaranty with MGM Resorts and each of the Initial Master Lease and the Initial Master Lease Guaranty shall be in full force and effect; and

(h) The Borrower shall have delivered to the Administrative Agent and each Lender at least five (5) days prior to the Closing Date such reasonable documentation and other information about the Loan Parties reasonably requested in writing by them at least ten (10) Business Days prior to the Closing Date in order to comply with applicable “know your customer” and anti-money laundering rules and regulations, including, without limitation, the PATRIOT Act, to the extent reasonably requested in writing by the Administrative Agent or any Lender.

Without limiting the generality of the provisions of the last paragraph of Section   10.03(e) , for purposes of determining compliance with the conditions specified in this Section   4.01 , each Lender that has signed this Agreement shall be deemed to have consented to, approved or accepted or to be satisfied with, each document or other matter required thereunder to be consented to or approved by or acceptable or satisfactory to a Lender unless the Administrative Agent shall have received notice from such Lender prior to the proposed Closing Date specifying its objection thereto.

4.02 Conditions to all Credit Extensions . The obligation of each Lender to honor any Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type, or a continuation of Eurodollar Rate Loans) is subject to the following conditions precedent:

(a) Except as provided in the last paragraph of Section 2.13(b) , the representations and warranties of the Borrower and each other Loan Party contained in Article   V or any other Loan Document, or which are contained in any document furnished at any time under or in connection herewith or therewith, shall be true and correct in all material respects (or, in the case of any representation or warranty qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) on and as of the date of such Credit Extension, except to the extent that such representations and warranties refer to an earlier date, in which case they shall be true and correct in all material respects (or, in the case of any representation or warranty

 

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qualified by “Material Adverse Effect” or “materiality”, true and correct in all respects) as of such earlier date, and except that for purposes of this Section   4.02 , the representations and warranties contained in Section   5.05 and Section   5.06 shall be deemed to refer to the most recent financial statements furnished pursuant to Sections   7.01(a) and (b) .

(b) Except as provided in the last paragraph of Section 2.13(b) , no Default or Event of Default shall exist, or would result from such proposed Credit Extension or from the application of the proceeds thereof.

(c) The Administrative Agent and, if applicable, the applicable L/C Issuer shall have received a Request for Credit Extension in accordance with the requirements hereof.

Each Request for Credit Extension (other than a Committed Loan Notice requesting only a conversion of Loans to the other Type or a continuation of Eurodollar Rate Loans) submitted by the Borrower shall be deemed to be a representation and warranty that the conditions specified in Sections   4.02(a) and (b)  have been satisfied on and as of the date of the applicable Credit Extension.

ARTICLE V

REPRESENTATIONS AND WARRANTIES

The Borrower represents and warrants to the Administrative Agent and the Lenders that:

5.01 Existence and Qualification; Power; Compliance With Laws .

(a) The Borrower is a limited partnership duly organized, validly existing and in good standing under the Laws of Delaware.

(b) The Borrower and each Guarantor and each other Restricted Subsidiary is duly qualified or registered to transact business and is in good standing in each other jurisdiction in which the conduct of its business or the ownership or leasing of its Properties makes such qualification or registration necessary, except where the failure so to qualify or register and to be in good standing would not constitute a Material Adverse Effect. The Borrower and each Guarantor has all requisite corporate or other organizational power and authority to conduct its business, to own and lease its Properties and to execute and deliver each Loan Document to which each is a party and to perform the Obligations, except where the failure to have such power and authority would not constitute a Material Adverse Effect.

(c) All outstanding Equity Interests of the Borrower and each Guarantor are duly authorized, validly issued, fully paid and non-assessable, and no holder thereof has any enforceable right of rescission under any applicable state or federal securities Laws. To the extent any Equity Interests constitute Collateral, such Equity Interests are free and clear of Liens other than Liens securing the Obligations and other Liens permitted pursuant to Section 8.03 .

(d) The Borrower and each Guarantor is in compliance with all Requirements of Law applicable to its business as at present conducted, has obtained all authorizations, consents, approvals, orders, licenses and permits from, and has accomplished all filings,

 

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registrations and qualifications with, or obtained exemptions from any of the foregoing from, any Governmental Authority that are necessary for the transaction of its business as at present conducted, except where the failure so to comply, file, register, qualify or obtain exemptions would not constitute a Material Adverse Effect.

(e) Neither the Borrower nor any other Loan Party is an EEA Financial Institution.

5.02 Authority; Compliance With Other Agreements and Instruments and Government Regulations . The execution, delivery and performance by the Borrower and each Guarantor of the Loan Documents to which it is a party have been duly authorized by all necessary corporate or other organizational action, and do not and will not:

(a) require any consent or approval not heretofore obtained of any member, partner, director, stockholder, security holder or creditor of such party;

(b) violate or conflict with any provision of such party’s charter, articles of incorporation, operating agreement or bylaws, as applicable;

(c) violate or conflict with any provision of the indentures governing the public Indebtedness of the Borrower and the Restricted Subsidiaries, except to the extent that such violation or conflict could not reasonably be expected to have a Material Adverse Effect;

(d) result in or require the creation or imposition of any Lien upon or with respect to any Property of the Borrower, and the Restricted Subsidiaries, other than Liens permitted by Section   8.03 ; or

(e) violate any Requirement of Law applicable to such Party, except to the extent that such violation could not reasonably be expected to have a Material Adverse Effect.

5.03 No Governmental Approvals Required . Except as obtained or made on or prior to the Closing Date, no authorization, consent, approval, order, license or permit from, or filing, registration or qualification with, any Governmental Authority is or will be required to authorize or permit under applicable Laws the execution, delivery and performance by the Borrower, any Guarantor or any other Restricted Subsidiary of the Loan Documents to which it is a party or for the legality, validity or enforceability hereof or thereof or for the consummation of the Transactions.

5.04 Subsidiaries .

(a) As of the Closing Date, Schedule   5.04 correctly sets forth the names, form of legal entity, ownership and jurisdictions of organization of all Restricted Subsidiaries, all Unrestricted Subsidiaries and all Unconsolidated Affiliates.

(b) As of the Closing Date, each Guarantor and each other Restricted Subsidiary is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, is duly qualified or registered to transact business and is in good standing as such in each jurisdiction in which the conduct of its business or the ownership or leasing of its Properties makes such qualification or registration necessary, and has all requisite corporate or

 

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other organizational power and authority to conduct its business and to own and lease its Properties, except where the failure to qualify or register, to be in good standing or to have such power and authority would not constitute a Material Adverse Effect.

(c) As of the Closing Date, each Restricted Subsidiary is in compliance with all Requirements of Law applicable to its business as at present conducted, has obtained all authorizations, consents, approvals, orders, licenses, and permits from, and has accomplished all filings, registrations, and qualifications with, or obtained exemptions from any of the foregoing from, any Governmental Authority that are necessary for the transaction of its business as at present conducted, except where the failure to so comply, file, register, qualify or obtain exemptions would not constitute a Material Adverse Effect.

5.05 Financial Statements . Each of the most recent unaudited quarterly and audited annual financial statements filed by Parent with the SEC fairly present in all material respects the financial condition, results of operations and changes in financial position of the Borrower and its Restricted Subsidiaries as of their respective dates and for the covered periods in conformity with GAAP (except, in the case of quarterly financial statements, for the absence of certain footnotes and other informational disclosures customarily omitted from interim financial statements).

5.06 No Other Liabilities . The Borrower and its Subsidiaries do not have any material liability or material contingent liability required under GAAP to be reflected or disclosed and not reflected or disclosed in the most recent financial statements filed by Parent with the SEC, other than liabilities and contingent liabilities arising in the ordinary course of business since the date of such financial statements.

5.07 Litigation . As of the Closing Date, except as disclosed in Parent’s Form S-11 registration statement as filed with the SEC on or prior to the Closing Date, there are no actions, suits, proceedings or investigations pending as to which the Borrower or the Restricted Subsidiaries have been served or have received notice or, to the best knowledge of the Borrower, threatened against or affecting the Borrower or the Restricted Subsidiaries or any Property of any of them before any Governmental Authority which could reasonably be expected to have a Material Adverse Effect.

5.08 Binding Obligations . This Agreement and each other Loan Document has been duly and validly executed and delivered by each Loan Party party thereto. Each of the Loan Documents to which any Loan Party is a party will, when executed and delivered by such Person, constitute the legal, valid and binding obligation of such Person, enforceable against such Person in accordance with its terms, except as enforcement may be limited by Debtor Relief Laws, Gaming Laws or equitable principles relating to the granting of specific performance and other equitable remedies as a matter of judicial discretion.

5.09 No Default . No Default has occurred and is continuing or would result from the consummation of the Transactions.

 

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5.10 ERISA . Each Pension Plan complies with ERISA, the Code and any other applicable Laws, except to the extent that such non-compliance could not reasonably be expected to have a Material Adverse Effect and no ERISA Event has occurred or is reasonably likely to occur that could reasonably be expected to have a Material Adverse Effect.

5.11 Use of Proceeds; Regulations   T, U and X; Investment Company Act .

(a) The proceeds of the Loans and Letters of Credit are intended to be and shall be used solely for the purposes set forth in and permitted by Section 6.07 .

(b) None of the Borrower or any Restricted Subsidiary is engaged principally, or as one of its important activities, in the business of extending credit for the purpose, whether immediate, incidental or ultimate, of buying or carrying Margin Stock. No part of the proceeds of any extension of credit (including any Loans and Letters of Credit) hereunder will be used directly or indirectly and whether immediately, incidentally or ultimately to purchase or carry any Margin Stock or to extend credit to others for such purpose or to refund Indebtedness originally incurred for such purpose or for any other purpose, in each case, that entails a violation of, or is inconsistent with, the provisions of Regulation T, Regulation U or Regulation X.

(c) Neither Borrower nor any of the Restricted Subsidiaries is or is required to be registered as an “investment company” under the Investment Company Act of 1940.

5.12 Disclosure . As of the Closing Date, all written statements (other than the Projections, other forward-looking information and information of a general economic or industry specific nature) made by a Responsible Officer to the Administrative Agent or any Lender in connection with this Agreement, or in connection with any Loan, as of the date thereof, taken as a whole, and when taken as a whole together with the periodic, current and other reports filed with the SEC with respect to Parent, the Borrower and the Restricted Subsidiaries, do not contain any untrue statement of a material fact or omit a material fact necessary to make the statements made not materially misleading in light of all the circumstances existing at the date any statement was made; provided that, with respect to the Projections, the Borrower only makes the representations set forth in Section   5.14 .

5.13 Tax Liability . Except as would not, individually or in the aggregate, have a Material Adverse Effect, the Borrower and the Restricted Subsidiaries have filed all tax returns which are required to be filed, and have paid, or made provision for the payment of, all taxes with respect to the periods, Property or transactions covered by said returns, or pursuant to any assessment received by the Borrower and the Restricted Subsidiaries (including, in each case, in their capacity as a withholding agent), except such taxes, if any, as are being contested in good faith by appropriate proceedings and as to which adequate reserves have been established and maintained, and so long as no Property of the Borrower and the Restricted Subsidiaries is in jeopardy of being seized, levied upon or forfeited. As of the Closing Date, there are no Tax sharing agreements or similar arrangements (including Tax indemnity arrangements) with respect to or involving the Borrower or the Restricted Subsidiaries, other than (i) those that are between the Borrower and its Restricted Subsidiaries and (ii) those that would not, individually or in the aggregate, have a Material Adverse Effect.

 

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5.14 Projections . As of the date of the preparation of any of the projections and pro forma financial information furnished at any time by or on behalf of any Loan Party (other than information of a general economic or industry specific nature) to the Administrative Agent or any Lenders pursuant to this Agreement (collectively, the “ Projections ”), to the best knowledge of the Borrower, the assumptions set forth in such Projections were believed by the preparers thereof to be reasonable and consistent with each other and with all facts known to the Borrower and the Restricted Subsidiaries as of that date, and such Projections were prepared in good faith and were reasonably based on such assumptions. As of the Closing Date, no fact or circumstance has come to the attention of the Borrower since the preparation of the Projections delivered to the Administrative Agent on December 21, 2015 that is in material conflict with the assumptions set forth in the Projections. Nothing in the Loan Documents shall be construed as a representation or covenant that any Projections in fact will be achieved. The Administrative Agent, Lenders and L/C Issuers acknowledge that the Projections are forward-looking statements and that actual financial results for the Borrower and the Restricted Subsidiaries could differ materially from those set forth in the Projections.

5.15 Hazardous Materials . There has been no Release of Hazardous Materials on, at, under or from any property currently or, to the best knowledge of the Borrower, formerly owned, leased or operated by the Borrower or any Restricted Subsidiary in violation of Environmental Law or that would reasonably be likely to result in a material Environmental Liability, and to the best knowledge of the Borrower, no condition exists that violates any Environmental Law affecting any Real Property, except for such Releases or violations that would not individually or in the aggregate be reasonably likely to have a Material Adverse Effect.

5.16 Solvency . As of the Closing Date, immediately after giving effect to any Credit Extension on such date, the Borrower (on a consolidated basis with the Restricted Subsidiaries) is and will be Solvent.

5.17 Material Adverse Effect . Since the Closing Date, there has been no event or circumstance, either individually or in the aggregate, that has had or could reasonably be expected to have, Material Adverse Effect.

5.18 REIT Status . Parent will elect or has elected to be treated as a REIT commencing with its taxable year ending December 31, 2016. Parent is organized and operates in conformity with the requirements for qualification and taxation as a REIT, and its proposed method of operation enables Parent to meet the requirements for qualification and taxation as a REIT.

5.19 Ownership of Property; Liens . The Borrower and the Restricted Subsidiaries each have good and valid title to, or valid leasehold interest in, all material Property owned or leased by it (including Mortgaged Real Property), and all such assets and Property are subject to no Liens other than Permitted Encumbrances and other Liens permitted by Section 8.03 . The Borrower and each of the Restricted Subsidiaries have good record and marketable title in fee simple with respect to owned Real Property that is Mortgaged Real Property.

5.20 Security Interest; Absence of Financing Statements; Etc . The Collateral Documents, once executed and delivered, will create, in favor of Administrative Agent for the benefit of the Secured Parties, as security for the obligations purported to be secured thereby, a

 

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valid and enforceable security interest in and Lien upon all of the Collateral, and upon (i) filing, recording, registering or taking such other actions as may be necessary with the appropriate Governmental Authorities (including payment of applicable filing and recording taxes), (ii) the taking of possession or control by the Administrative Agent of the Collateral with respect to which a security interest may be perfected only by possession or control (which possession or control shall be given to the Administrative Agent to the extent possession or control by the Administrative Agent is required by the Security Agreement) and (iii) delivery of the applicable documents to the Administrative Agent in accordance with the provisions of the applicable Collateral Documents, for the benefit of the Secured Parties, such security interest shall be a perfected security interest in and Lien upon all of the Collateral (subject to any applicable provisions set forth in the Security Agreement with respect to limitations as to perfection of Liens on the Collateral described therein) prior to all Liens other than (x) Permitted Encumbrances and (y) any other Liens permitted by Section 8.03 , in each case having priority by operation of Law.

5.21 Licenses and Permits . The Borrower and the Restricted Subsidiaries hold all material governmental permits, licenses, authorizations, consents and approvals necessary for the Borrower and the Restricted Subsidiaries to own, lease, and operate (to the extent applicable) their respective Properties and (to the extent applicable) to operate their respective businesses as now being conducted (collectively, the “ Permits ”), except for Permits the failure of which to obtain would not reasonably be expected to have a Material Adverse Effect. None of the Permits has been modified in any way since the Closing Date that would reasonably be expected to have a Material Adverse Effect. All Permits are in full force and effect except where the failure to be in full force and effect would not reasonably be expected to have a Material Adverse Effect. Neither the Borrower nor any of the Restricted Subsidiaries has received written notice that any Gaming Authority has commenced proceedings to suspend, revoke or not renew any such Permits where such suspensions, revocations or failure to renew would reasonably be expected to have a Material Adverse Effect.

5.22 Subordinated Debt . The Obligations are senior debt with respect to all Material Indebtedness that is contractually subordinated in right of payment to any other Indebtedness of the Borrower and entitled to the full benefits of all subordination provisions therein and such subordination provisions are in full force and effect.

5.23 Intellectual Property . The Borrower and each of the Restricted Subsidiaries own or possesses adequate valid licenses or otherwise have the valid right to use all of the patents, patent applications, trademarks, trademark applications, service marks, service mark applications, trade names, URLs, copyrights, computer software, trade secrets, know-how and processes (collectively, “ Intellectual Property ”) that are necessary for the operation of their business as presently conducted except where failure to own or have such right would not reasonably be expected to have a Material Adverse Effect. No claim is pending or, to the knowledge of any Responsible Officer, threatened to the effect that the Borrower or the Restricted Subsidiaries infringes or conflicts with the asserted rights of any other Person under any material Intellectual Property, nor is there, to the knowledge of any Responsible Officer, any basis for such a claim, except for such claims that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect. No claim is pending or, to the knowledge of any Responsible Officer, threatened to the effect that any such material Intellectual

 

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Property owned by the Borrower or the Restricted Subsidiaries, nor is there, to the knowledge of any Responsible Officer, any basis for such a claim, except for such claims that would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect.

5.24 Insurance .

(a) The properties of the Borrower and the Restricted Subsidiaries are insured with financially sound and reputable insurance companies (which are not Loan Parties and, to the extent prohibited by the applicable Master Lease, are not Affiliates of the tenant thereunder), in such amounts, subject to such deductibles and against such risks as is carried by responsible companies engaged in similar businesses and owning similar assets in the general areas in which the Borrower and the Restricted Subsidiaries operate (it being agreed that the Borrower and the Restricted Subsidiaries shall have satisfied this representation with respect to a Real Property if the tenant under the applicable Master Lease for such Real Property maintains insurance satisfying the requirements of such Master Lease without giving effect to any consent or waiver by the landlord thereunder).

(b) Except for the Real Property listed on Schedule   5.24 attached hereto, as of the Closing Date, no Mortgage encumbers improved real property which is located in an area that has been identified by the Secretary of Housing and Urban Development as an area having special flood hazards and in which flood insurance has been made available under the National Flood Insurance Act of 1968.

5.25 Mortgaged Real Property; No Casualty .

(a) With respect to each Mortgaged Real Property, as of the Closing Date, to the knowledge of the Borrower (i) there has been issued a valid and proper certificate of occupancy or other local equivalent, if any, for the use then being made of such Mortgaged Real Property to the extent required by applicable Requirements of Law and there is no outstanding written citation, notice of violation or similar notice indicating that the Mortgaged Real Property contains conditions which are not in compliance with local codes or ordinances relating to building or fire safety or structural soundness and (ii) there are no material disputes regarding boundary lines, location, encroachment or possession of such Mortgaged Real Property.

(b) As of the Closing Date, except as would not, individually or in the aggregate, have or reasonably be expected to have a Material Adverse Effect, no Casualty Event has occurred.

5.26 Anti-Corruption Laws; Anti-Money Laundering Laws and Sanctions .

(a) The Borrower has implemented, and maintains and enforces, policies and procedures designed to promote and achieve compliance with applicable Anti-Corruption Laws and applicable Sanctions. No Loan Party or any of its Subsidiaries or, to the knowledge of the Borrower, any of their respective officers, directors, employees or agents that will act in any capacity in connection with or benefit from the Loans is a Sanctioned Person.

(b) The Borrower will not use, directly or indirectly, any part of the proceeds of the Loans: (i) to make any payments to any governmental official or employee, political party,

 

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official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of applicable Anti-Corruption Laws; (ii) to fund or facilitate dealings with a Sanctioned Person in violation of applicable Sanctions; or (iii) in any other manner that would constitute or give rise to a violation any Sanctions by any party hereto, including any Lender.

(c) To the extent applicable, the Borrower is in compliance, in all material respects, with the USA PATRIOT Act.

ARTICLE VI

AFFIRMATIVE COVENANTS

So long as the Termination Conditions have not been satisfied, the Borrower shall, and shall cause each of the Restricted Subsidiaries to:

6.01 Preservation of Existence . Preserve and maintain their respective existences in the jurisdiction of their formation and all material authorizations, rights, franchises, privileges, consents, approvals, orders, licenses, permits, or registrations from any Governmental Authority that are necessary for the transaction of their respective business except (a) where the failure to so preserve and maintain the existence of any Restricted Subsidiary or any such authorizations, rights, franchises, privileges, consents, approvals, orders, licenses, permits, or registrations would not constitute a Material Adverse Effect, and (b) that a merger or Asset Sale permitted by Section   8.01 shall not constitute a violation of this covenant; and qualify and remain qualified to transact business in each jurisdiction in which such qualification is necessary in view of their respective business or the ownership or leasing of their respective Properties except where the failure to so qualify or remain qualified would not constitute a Material Adverse Effect.

6.02 Maintenance of Properties .

(a) Maintain (or cause the applicable tenants under the Master Leases to maintain), preserve and protect all of their respective material Properties in good order and condition, subject to wear and tear in the ordinary course of business, and not permit any waste of their respective Properties, except that the failure to maintain, preserve and protect a particular item of Property that is not of significant value, either intrinsically or to the operations of the Borrower and the Restricted Subsidiaries, taken as a whole, shall not constitute a violation of this covenant or where the failure to do so would not constitute a Material Adverse Effect (it being agreed that the Borrower and the Restricted Subsidiaries shall have satisfied this covenant with respect to a Real Property if the tenant under the applicable Master Lease for such Real Property maintains, preserves and protects such Real Property in a manner satisfying the requirements of such Master Lease without giving effect to any consent or waiver by the landlord thereunder). In respect of any Mortgaged Real Property, the Borrower and the Restricted Subsidiaries shall not (a) initiate or acquiesce in any change in zoning or any other land classification in a manner that would prohibit any casino, gaming, hotel business or Related Business conducted on such Mortgaged Real Property or would otherwise materially impact the value of such Mortgaged Real Property as collateral, or (b) demolish any of the primary gaming or hotel features of such Mortgaged Real Property (except in connection with refreshments or remodeling thereof and temporary construction disruption which is reasonable

 

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in relation to the anticipated benefits of the development or redevelopment thereof), provided that the Borrower and the Restricted Subsidiaries shall be permitted to demolish any portion of such Mortgaged Real Property in connection with the expansion or renovation of such Mortgaged Real Property or the construction of adjacent or adjoining features, provided that the Borrower has determined in good faith that such expansion, renovation, construction or similar project would not be expected to unreasonably interfere with the business conducted at such Mortgaged Real Property or materially impair its value as Collateral (it being understood that temporary construction disruption which is reasonable in relation to the anticipated benefits of the expansion, renovation, construction or similar project would not be considered an unreasonable interference).

(b) The Borrower shall, and will cause each of the Restricted Subsidiaries to, do or cause to be done all things necessary to obtain, preserve, renew, extend and keep in full force and effect the rights, privileges, licenses, permits, franchises, authorizations and Intellectual Property used in the conduct of its business except where the failure to do so, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; provided , however , that nothing in this Section 6.02(a) and (b) shall prevent (A) sales, conveyances, transfers or other dispositions of assets, consolidations or mergers by or any other transaction permitted hereunder; (B) the withdrawal of qualification as a foreign corporation in any jurisdiction where such withdrawal, individually or in the aggregate, would not reasonably be expected to result in a Material Adverse Effect; or (C) the abandonment of any rights, permits, authorizations, franchises, licenses and Intellectual Property that the Borrower reasonably determines are not necessary to its business.

6.03 Maintenance of Insurance .

(a) Maintain liability, casualty and other insurance (subject to customary deductibles and retentions), including with respect to each Mortgaged Real Property, with insurance companies in such amounts and against such risks as may be customarily carried by companies engaged in similar businesses and owning similar assets in the general areas in which the Borrower and the Restricted Subsidiaries operate (it being agreed that the Borrower and the Restricted Subsidiaries shall have satisfied this covenant with respect to a Real Property if the tenant under the applicable Master Lease for such Real Property maintains insurance satisfying the requirements of such Master Lease without giving effect to any consent or waiver by the landlord thereunder). The Administrative Agent shall be named as an additional insured on all liability insurance policies of each Loan Party (other than directors and officers liability insurance, insurance policies relating to employment practices liability, crime or fiduciary duties, kidnap and ransom insurance policies, and insurance as to fraud, errors and omissions) and the Administrative Agent shall be named as a mortgagee/loss payee on all property insurance policies of each such Person relating to Property which is Collateral.

(b) If any portion of any Mortgaged Real Property at any time is located in an area identified by the Federal Emergency Management Agency (or any successor agency) as a special flood hazard area with respect to which flood insurance has been made available under the National Flood Insurance Act of 1968 (as now or hereafter in effect or successor act thereto), then the Borrower shall, or shall cause the applicable Loan Party to (i) maintain, or cause to be maintained, with a financially sound and reputable insurer (determined at the time

 

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such insurance is obtained), flood insurance in an amount and otherwise sufficient to comply with all applicable rules and regulations promulgated pursuant to the Flood Insurance Laws and (ii) deliver to the Administrative Agent evidence of such compliance reasonably acceptable to the Administrative Agent.

6.04 Compliance With Laws . Comply, within the time period, if any, given for such compliance by the relevant Governmental Authority with enforcement authority, with all Requirements of Law (including ERISA, applicable Tax laws and Gaming Laws and any and all zoning, building, ordinance, code or approval or any building permits or any restrictions of record or agreements affecting the Real Property) except to the extent that such non-compliance with such Requirements of Law would not constitute a Material Adverse Effect, except that the Borrower and the Restricted Subsidiaries need not comply with a Requirement of Law then being contested by any of them in good faith by appropriate proceedings.

6.05 Inspection Right s; Quarterly Lender Calls .

(a) Upon reasonable notice, at any time during regular business hours and as often as reasonably requested (but not so as to materially interfere with the business of the Borrower or the Restricted Subsidiaries) permit the Administrative Agent or any Lender, or any authorized employee, agent or representative thereof, to examine, audit and make copies and abstracts from the records and books of account of, and to visit and inspect the Properties of, the Borrower and the Restricted Subsidiaries ( provided that, excluding any such visits and inspections during the continuation of an Event of Default, (x) only the Administrative Agent on behalf of the Lenders may exercise such visitation and inspection rights and (y) the Administrative Agent shall not exercise such rights more often than one time during any Fiscal Year; it being understood that the Administrative Agent may make such additional visits and inspections in each Fiscal Year during regular business hours of the Borrower and the Restricted Subsidiaries at its own expense as it reasonably requests) and to discuss the affairs, finances and accounts of the Borrower and the Restricted Subsidiaries with any of their officers, managers, key employees and accountants (subject to such accountants’ customary policies and procedures) and, upon request, furnish promptly to the Administrative Agent, any Lender or any advisor of the Administrative Agent or any Lender true copies of all financial information made available to the board of directors or audit committee of the board of directors of the Borrower, provided that no Borrower Party will be required to disclose, permit the inspection, examination or making of extracts, or discussion of, any document, information or other matter in respect of which disclosure is then prohibited by Law or any binding agreement. Notwithstanding anything to the contrary in this Agreement, none of the Borrower or the Restricted Subsidiaries will be required to disclose, permit the inspection, examination or making copies or abstracts of, or discussion of, any document, information or other matter with any Disqualified Lender that (a) constitutes non-financial trade secrets or non-financial proprietary information, (b) in respect of which disclosure to the Administrative Agent or any Lender (or their respective representatives or contractors) is prohibited by Law or any binding agreement or (c) is subject to attorney-client or similar privilege or constitutes attorney work product.

(b) The Borrower shall cause appropriate members of its management to participate in one conference call with the Lenders per Fiscal Quarter at a time to be mutually agreed by

 

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the Borrower and the Administrative Agent ( provided that, this Section 6.05(b) may be satisfied by (i) the holding of a quarterly earnings call by Parent or (ii) so long as MGM Resorts’ consolidated financial reports include the financial results of the Borrower, the holding of a quarterly earnings call by MGM Resorts in which management of the Borrower participates).

6.06 Keeping of Records and Books of Account . Keep adequate records and books of account in conformity with GAAP and in material conformity with all applicable requirements of any Governmental Authority having regulatory jurisdiction over the Borrower or any Restricted Subsidiary.

6.07 Use of Proceeds .

(a) Use the proceeds of Loans made on the Closing Date to refinance the obligations under the Bridge Credit Agreement and to pay fees and expenses in connection with the Transactions; provided that, the Borrower shall not borrow more than $300,000,000 under the Revolving Facility on the Closing Date.

(b) Use the proceeds of each Loan and other credit extension made hereunder after the Closing Date for working capital, capital expenditures, Permitted Acquisitions and other Investments permitted hereunder, Restricted Payments permitted hereunder and for other lawful corporate purposes.

6.08 Additional Loan Parties . Upon (i) any Loan Party creating or acquiring any Subsidiary that is a wholly-owned Restricted Subsidiary (other than an Immaterial Subsidiary, a FSHCO or a Foreign Subsidiary) after the Closing Date, (ii) any Subsidiary that is a Restricted Subsidiary of a Loan Party ceasing to be an Immaterial Subsidiary, ceasing to be a FSHCO or ceasing to be a Foreign Subsidiary, or (iii) any Subsidiary that is an Unrestricted Subsidiary becoming a wholly-owned Restricted Subsidiary (other than an Immaterial Subsidiary, a FSHCO or a Foreign Subsidiary) pursuant to Section   6.11 , such Loan Party shall, to the extent that it does not violate any Gaming Law or, if necessary, has received the approval of the applicable Gaming Authority, (A) cause each such Restricted Subsidiary (other than an Immaterial Subsidiary, a FSHCO or a Foreign Subsidiary) to promptly (but in any event within 180 days after the later of such event described in clause   (i) , (ii)  or (iii)  above or receipt of such approval (or such longer period of time as Administrative Agent may agree to in its reasonable discretion or as required to obtain any necessary Gaming Approval)), execute and deliver a Guaranty and all such other documents and certificates as Administrative Agent may reasonably request in order to have such Restricted Subsidiary become a Guarantor and (B) deliver to the Administrative Agent all legal opinions reasonably requested by the Administrative Agent relating to the matters described above covering matters similar to those covered in the opinions delivered on the Closing Date with respect to such Guarantor; provided that, notwithstanding anything in this Section 6.08 to the contrary, any Immaterial Subsidiary that is a guarantor of any Material Indebtedness of the Borrower or the Restricted Subsidiaries shall be required to be a Guarantor until such time as its guaranty of such Material Indebtedness is released (at which time it shall be released by the Administrative Agent from the Guaranty on the request of the Borrower without further action by the Creditor Parties). To the extent approvals of any Gaming Authorities for any actions required by this Section are required by applicable Gaming Laws, the Borrower

 

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and/or applicable Loan Party shall, at their own expense, use commercially reasonable efforts to promptly (as reasonably determined by the Borrower in good faith) apply for and to pursue such approvals.

6.09 Collateral Matters; Pledge or Mortgage of Real Property . Subject to compliance with applicable Gaming Laws, if any Grantor shall acquire any Property (other than any Excluded Assets) after the Closing Date as to which Administrative Agent, for the benefit of the Secured Parties, does not have a perfected Lien and as to which the Collateral Documents purport to grant a Lien or the Loan Documents require the grant of a Lien, that Grantor shall (subject to any applicable provisions set forth in the Security Agreement with respect to limitations on grant of security interests in certain types of assets or Collateral and perfection of Liens on such assets or Collateral) promptly (and in any event within 180 days or such longer period of time as Administrative Agent may agree to in its reasonable discretion or as required to obtain any necessary Gaming Approval) (i) execute and deliver to the Administrative Agent such amendments to the Collateral Documents or such other documents (including additional Mortgages with respect to each fee owned Real Property with a fair market value in excess of $50,000,000 and, solely with respect to ground leases, each leasehold in Real Property with a fair market value in excess of $50,000,000 and, in connection with each such Mortgage, each of the items described in Section 4.01(a)(iv) ) as Administrative Agent deems reasonably necessary in order to grant to the Administrative Agent, for the benefit of the Secured Parties, security interests in such Property and (ii) take all actions reasonably necessary to grant to the Administrative Agent, for the benefit of the Secured Parties, a perfected First Priority Lien. To the extent approvals of any Gaming Authorities for any actions required by this Section are required by applicable Gaming Laws, the Borrower and/or applicable Loan Party shall, at their own expense, promptly (as reasonably determined by the Borrower in good faith) apply for and thereafter use commercially reasonable efforts to pursue such approvals.

6.10 Security Interests; Further Assurances . Each Grantor shall, promptly, upon the reasonable request of Administrative Agent, and assuming the request does not violate any Gaming Law or, if necessary, is approved by the Gaming Authority, at the Borrower’s expense, execute, acknowledge and deliver, or cause the execution, acknowledgment and delivery of, and thereafter register, file or record, or cause to be registered, filed or recorded, in an appropriate governmental office, any mortgage, deed of trust (or similar instrument), assignment of leases and rents or financing statement, or deliver to the Administrative Agent any certificates representing Equity Interests, which are reasonably necessary to create, protect or perfect or for the continued validity, perfection and priority of the Liens on the Collateral covered thereby (subject to any applicable provisions set forth in the Collateral Documents with respect to limitations on grant of security interests in certain types of Collateral and perfection of Liens on such Collateral) subject to no Liens other than Permitted Encumbrances and other Liens permitted pursuant to Section 8.03 . With respect to the Pledge Agreement, to the extent approvals of any Gaming Authorities for any actions required by the Pledge Agreement are required by applicable Gaming Laws, the Borrower and/or applicable Loan Party shall, at their own expense, promptly (as reasonably determined by the Borrower in good faith) apply for and thereafter pursue such approvals. Upon the exercise by the Administrative Agent or the Lenders of any power, right, privilege or remedy pursuant to any Loan Document following the occurrence and during the continuation of an Event of Default which requires any consent, approval, registration, qualification or authorization of any Governmental Authority, the

 

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Borrower and the Restricted Subsidiaries shall use commercially reasonable efforts to execute and deliver all applications, certifications, instruments and other documents and papers that Administrative Agent or the Lenders may be so required to obtain.

Notwithstanding anything to the contrary in this Agreement or in any Collateral Document, no Grantor shall be required to (a) perfect any security interests, or make any filings or take any other actions necessary or desirable to perfect and protect security interests, in (i) Excluded Assets, (ii) any motor vehicles and other assets subject to certificates of title (other than to the extent perfection can be achieved with the filing of UCC financing statements), (iii) any letter of credit rights (except to the extent constituting supporting obligations for other Collateral as to which perfection may be accomplished solely by filing of UCC financing statements) or (iv) any commercial tort claims with a value of less than $10,000,000, (b) enter into any control agreement or control or similar arrangement with respect to deposit or securities accounts, (c) grant any Lien in, those assets as to which (A) the cost, burden, difficulty or consequence of obtaining or perfecting such Lien (including any mortgage, stamp, intangibles or other tax or expenses relating to such Lien) outweighs the benefit to the Lenders of the security afforded thereby as reasonably determined by the Borrower and the Administrative Agent or (B) the granting of a Lien on such asset would violate any enforceable anti-assignment provisions of contracts binding on such assets at the time of their acquisition and not entered into in contemplation of such acquisition or applicable law or, in the case of assets consisting of licenses, agreements or similar contracts, to the extent the granting of such Lien therein would violate the terms of such license, agreement or similar contract relating to such asset (in each case, after giving effect to the applicable anti-assignment provisions of the UCC or other applicable law), (d) no actions shall be required to be taken in order to create, grant or perfect any security interest in any assets located outside of the U.S. and no foreign law security or pledge agreements, foreign law mortgages or deeds or foreign intellectual property filings or searches shall be required or (e) no Lien on Real Property shall be required except in respect of Mortgaged Real Property (provided that if a mortgage tax will be owed upon the granting of any Mortgage required hereunder on the entire amount of the Secured Obligations (as defined in the Security Agreement) evidenced hereby, then, to the extent permitted by, and in accordance with, applicable law, the amount of such mortgage tax shall be calculated based on the lesser of (x) the amount of the Secured Obligations allocated to the applicable Mortgaged Real Property and (y) the estimated fair market value of the Mortgaged Real Property at the time the Mortgage is entered into and determined in a manner reasonably acceptable to Administrative Agent and the Borrower (which in the case of clause (y) will result in a limitation of the Secured Obligations secured by the Mortgage to such amount)). Notwithstanding anything contained in Section   6.09 or this Section   6.10 to the contrary, this Section   6.10 shall not require the creation, perfection or maintenance of pledges of or security interests in, or the obtaining of title insurance, surveys, abstracts or appraisals with respect to, Excluded Assets, or the taking of any actions to perfect security interests in Excluded Assets apart from the filing of financing statements under the UCC.

Furthermore, the Administrative Agent may grant extensions of time for the perfection of security interests in or the obtaining of title insurance and surveys with respect to particular assets (including extensions beyond the Closing Date for the perfection of security interests in the assets of the Loan Parties on such date) where it reasonably determines, in consultation with the Borrower, that perfection cannot be accomplished without undue effort or

 

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expense by the time or times at which it would otherwise be required by this Agreement or the Collateral Documents.

6.11 Limitation on Designations of Unrestricted Subsidiaries .

(a) The Borrower may hereafter designate (or re-designate) any Restricted Subsidiary as an “Unrestricted Subsidiary” under this Agreement (a “ Designation ”) only if: (i) no Event of Default shall have occurred and be continuing at the time of or immediately after giving effect to such Designation; (ii) such Designation shall be deemed to be an Investment in the amount equal to its direct or indirect pro rata ownership interest in the fair market value (as reasonably determined by the Borrower) of the net assets of such Subsidiary at the time of such Designation; (iii) such Investment is permitted by Section 8.06 ; and (iv) after giving effect to such Designation, the Borrower would be in Pro Forma Compliance with the financial covenants in Section 8.11 as of the last day of the Test Period ended immediately preceding the date of such Designation (regardless of whether the Revolving Facility or the Term A Facility is then in effect). If the Borrower designates a Guarantor as an Unrestricted Subsidiary in accordance with this Section   6.11 , the Obligations of such Guarantor under the Loan Documents shall terminate and be of no further force and effect without any action required by the Administrative Agent; and, at the Borrower’s request, the Administrative Agent will execute and deliver any instrument evidencing such termination.

(b) The Borrower may hereafter designate (or re-designate) any Unrestricted Subsidiary as a “Restricted Subsidiary” under this Agreement or revoke any Designation of a Subsidiary as an Unrestricted Subsidiary (in either case, a “ Revocation ”), whereupon such Subsidiary shall then constitute a Restricted Subsidiary, if: (i) no Event of Default shall have occurred and be continuing at the time and immediately after giving effect to such Revocation; (ii) after giving effect to such Revocation, the Borrower would be in Pro Forma Compliance with the financial covenants in Section 8.11 (regardless of whether the Revolving Facility or the Term A Facility is then in effect) as of the last day of the Test Period ended immediately preceding the date of such Revocation; and (iii) all Liens and Indebtedness of such Unrestricted Subsidiary and its Subsidiaries outstanding immediately following such Revocation would, if incurred at the time of such Revocation, have been permitted to be incurred for all purposes of this Agreement.

(c) All Designations and Revocations must be evidenced by an Officer’s Certificate of the Borrower delivered to the Administrative Agent with the Responsible Officer so executing such certificate certifying compliance with the foregoing provisions of this Section   6.11 .

(d) Notwithstanding anything to the contrary in this Section 6.11 , no Subsidiary may be Designated as an Unrestricted Subsidiary for so long as such Subsidiary directly or indirectly owns or leases a Real Property subject to the Initial Master Lease.

6.12 Taxes . Except as would not, individually or in the aggregate, have a Material Adverse Effect, the Borrower and the Restricted Subsidiaries shall timely file all Tax returns, statements, reports and forms or other documents (including estimated Tax or information returns and including any required, related or supporting information) required to be filed by it and pay and discharge promptly when due all Taxes, assessments and governmental charges or levies imposed upon it or upon its income or profits or in respect of its property (including, in

 

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each case, in its capacity as a withholding agent), before the same shall become delinquent or in default; provided, however, that such payment and discharge shall not be required with respect to any such tax, assessment, charge, levy or claim so long as the validity or amount thereof shall be contested in good faith by appropriate proceedings and the Borrower and the Restricted Subsidiaries shall have set aside on its books adequate reserves with respect thereto in accordance with GAAP and such contest operates to suspend collection of the contested obligation, tax, assessment or charge and enforcement of a Lien and, in the case of Collateral, the Borrower and the Restricted Subsidiaries shall have otherwise complied with the provisions of the applicable Collateral Document in connection with such nonpayment.

6.13 Compliance with Environmental Law . The Borrower and the Restricted Subsidiaries shall (a) comply with Environmental Laws and will keep or cause all Real Property to be kept free of any Liens under Environmental Law, unless, in each case, failure to do so would not reasonably be expected to have a Material Adverse Effect; (b) in the event of any Release of Hazardous Material at, on, under or emanating from any Real Property which would result in liability under or a violation of any Environmental Law, in each case which would reasonably be expected to have a Material Adverse Effect, undertake, and/or take reasonable efforts to cause any of their respective tenants or occupants to undertake, at no cost or expense to Administrative Agent or any Creditor Party, any action required pursuant to Environmental Law to mitigate and eliminate such condition; provided , however , that no Borrower Party shall be required to comply with any order or directive then being contested by any of them in good faith by appropriate proceedings; and (c) if a Release of Hazardous Materials has occurred at any Mortgaged Real Property that reasonably could be expected to form the basis of an Environmental Liability against the Borrower or applicable Restricted Subsidiary or Mortgaged Real Property and which would reasonably be expected to have a Material Adverse Effect, provide, at the written request of Administrative Agent, in its reasonable discretion, and at no cost or expense to Administrative Agent or any Creditor Party, an environmental site assessment (including, without limitation, the results of any soil or groundwater or other testing conducted at Administrative Agent’s request) concerning such Mortgaged Real Property, conducted by an environmental consulting firm proposed by the Borrower and approved by Administrative Agent in its reasonable discretion, indicating the presence or absence of Hazardous Material and the potential cost of any required action in connection with any Hazardous Material on, at, under or emanating from such Mortgaged Real Property.

6.14 Maintenance of REIT Status . The Borrower shall cause Parent to elect to be treated as a REIT commencing with its taxable year ending December 31, 2016. The Borrower shall cause Parent to meet the requirements for qualification and taxation as a REIT for its taxable year ending on December 31, 2016 and thereafter (after taking into account any cure provisions set forth in the Code that are complied with by the REIT).

6.15 Maintenance of Credit Ratings . The Borrower shall cause Parent to at all times use its commercially reasonable efforts to maintain (a) a public corporate credit rating (but not any particular rating) from S&P and a public corporate family rating (but not any particular rating) from Moody’s, in each case, in respect of Parent and (b) a public rating (but not any particular rating) in respect of the Loans from each of S&P and Moody’s.

 

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ARTICLE VII

INFORMATION AND REPORTING COVENANTS

So long as the Termination Conditions have not been satisfied, the Borrower shall, and shall cause each of the Restricted Subsidiaries to:

7.01 Financial Statements, Etc . Deliver to the Administrative Agent (for distribution by the Administrative Agent to the Lenders):

(a) Quarterly Financials . As soon as practicable, and in any event within 60 days after the end of each Fiscal Quarter (other than the fourth Fiscal Quarter in any Fiscal Year), the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Quarter and the consolidated statement of operations for such Fiscal Quarter, and its consolidated statement of cash flows for the portion of the Fiscal Year ended with such Fiscal Quarter (which shall include supplemental schedules reconciling the financial statements of the Borrower and the Guarantors, on the one hand, and the Subsidiaries that are not Guarantors on the other hand);

(b) Annual Financials . Commencing with the Fiscal Year ending December 31, 2016, as soon as practicable, and in any event within 105 days after the end of each Fiscal Year, the consolidated balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal Year and the consolidated statements of operations, shareholders’ equity and cash flows, in each case of the Borrower and its Subsidiaries for such Fiscal Year, in each case as at the end of and for the Fiscal Year (in each case, which shall include supplemental schedules reconciling the financial statements of the Borrower and the Guarantors, on the one hand, and the Subsidiaries that are not Guarantors on the other hand), all in reasonable detail. Such financial statements shall be prepared in accordance with GAAP and such consolidated balance sheet and consolidated statements shall be accompanied by a report of one of the four largest public accounting firms in the United States or other independent public accountants of recognized standing selected by the Borrower and reasonably satisfactory to the Administrative Agent, which report shall be prepared in accordance with generally accepted accounting standards as at such date, and shall not be subject to any qualification or exception expressing substantial doubt about the ability of the Borrower and its Subsidiaries to continue as a “going concern” or any exception as to the scope of such audit (other than a going concern qualification resulting from (i) an upcoming maturity date under any Indebtedness occurring within one year from the time such opinion is delivered or (ii) any prospective financial covenant default under Section 8.11 or any other financial covenant under any other Indebtedness);

(c) Annual Budgets . As soon as practicable, and in any event within 90 days after the commencement of each Fiscal Year (commencing with the Fiscal Year ending December 31, 2016), a budget and projection by Fiscal Quarter for that Fiscal Year and by Fiscal Year for the next two succeeding Fiscal Years, including for the first such Fiscal Year, projected consolidated balance sheets, statements of operations and statements of cash flow and, for the second and third such Fiscal Years, projected consolidated condensed balance sheets and statements of operations and cash flows, of the Borrower and its Subsidiaries (which shall include supplemental schedules reconciling the financial statements of the Borrower and the

 

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Guarantors, on the one hand, and the Subsidiaries that are not Guarantors on the other hand), all in reasonable detail;

(d) SEC Filings . Promptly after the same are available, copies of all annual, regular, periodic and special reports and registration statements which the Parent may file or be required to file with the SEC under Section 13 or 15(d) of the Exchange Act, and not otherwise required to be delivered to the Administrative Agent pursuant to other provisions of this Section 7.01 ;

(e) Environmental Matters . Promptly after the assertion or occurrence thereof, written notice of any Environmental Liability or Release of Hazardous Material which would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect;

(f) Default . Promptly after a Responsible Officer becomes aware of the existence of any condition or event which constitutes an Event of Default, written notice specifying the nature and period of existence thereof and specifying what action the Borrower or the Restricted Subsidiaries are taking or propose to take with respect thereto;

(g) [Reserved];

(h) Mandatory Prepayment Events . Promptly after the (i) occurrence of any Asset Sale for which the Borrower is required to make a mandatory prepayment pursuant to Section   2.04(b)(i) , (ii) incurrence or issuance of any Indebtedness for which the Borrower is required to make a mandatory prepayment pursuant to Section   2.04(b)(ii) , or (iii) receipt of any Net Available Proceeds with respect to any Casualty Event for which the Borrower is required to make a mandatory prepayment pursuant to Section   2.04(b)(iii) , written notice thereof;

(i) ERISA Information . Promptly after the occurrence of any ERISA Event that, alone or together with any other ERISA Events that have occurred, would reasonably be expected to have, individually or in the aggregate a Material Adverse Effect, a written notice specifying the nature thereof;

(j) Tenant Information . If requested by the Administrative Agent, to the extent required to be provided to the Borrower or a Restricted Subsidiary under a Master Lease, quarterly or annual financial statements of the applicable Tenant or the parent company of the applicable Tenant to the extent provided to the Borrower or such Restricted Subsidiary under such Master Lease;

(k) Copies of Documents . (i) Promptly after the effectiveness thereof (and in any event within ten (10) Business Days (or such longer period as the Administrative Agent shall agree in its sole discretion)), copies of any amendment or modification to, or waiver of, any Master Lease or any Master Lease Guaranty, which amendment, modification or waiver is material and adverse to the interests of the Lenders, (ii) promptly upon the request of the Administrative Agent, copies of any other amendment or modification to, or waiver of, any Master Lease or any Master Lease Guaranty and (iii) promptly upon receipt thereof by the Borrower or a Restricted Subsidiary, copies of any notice of default delivered or received under any Master Lease; and

 

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(l) Other Information . Such other data and information as from time to time may be reasonably requested by the Administrative Agent or any Lender (through the Administrative Agent) or by the Required Lenders.

Documents required to be delivered pursuant to Section   7.01(a) , Section   7.01(b) or Section   7.01(d) (to the extent any such documents are included in materials otherwise filed with the SEC) may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Parent posts such documents, or provides a link thereto on the Parent’s website on the Internet at the website address listed on Schedule   11.02 ; or (ii) on which such documents are posted on the Borrower’s behalf on an Internet or intranet website, if any, to which each Lender and the Administrative Agent have access (whether a commercial, third-party website or whether sponsored by the Administrative Agent); provided that: the Borrower shall notify the Administrative Agent (by facsimile or electronic mail) of the posting of any such documents and provide to the Administrative Agent by electronic mail electronic versions (i.e., soft copies) of such documents. Except for such Compliance Certificates, the Administrative Agent shall have no obligation to request the delivery or to maintain copies of the documents referred to above, and in any event shall have no responsibility to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be solely responsible for requesting delivery to it or maintaining its copies of such documents.

The Borrower hereby acknowledges that (a) the Administrative Agent and/or the Arrangers will make available to the Lenders and the L/C Issuers materials and/or information provided by or on behalf of the Borrower hereunder (collectively, “ Borrower Materials ”) by posting the Borrower Materials on IntraLinks or another similar electronic system (the “ Platform ”) and (b) certain of the Lenders (each, a “ Public Lender ”) may have personnel who do not wish to receive material non-public information with respect to the Borrower or its Affiliates, or the respective securities of any of the foregoing, and who may be engaged in investment and other market-related activities with respect to such Persons’ securities. The Borrower hereby agrees that so long as Parent, the Borrower or any of its Subsidiaries is the issuer of any outstanding debt or equity securities that are registered or issued pursuant to a private offering or is actively contemplating issuing any such securities it will use commercially reasonable efforts to identify that portion of the Borrower Materials that may be distributed to the Public Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked “PUBLIC” which, at a minimum, shall mean that the word “PUBLIC” shall appear prominently on the first page thereof; (x) only by marking Borrower Materials “PUBLIC” (or by expressly authorizing their posting as such in writing), will the Borrower be deemed to have authorized the Administrative Agent, the Arrangers, the L/C Issuers and the Lenders to treat such Borrower Materials as not containing any material non-public information (although it may be sensitive and proprietary) with respect to the Borrower or its Affiliates or their respective securities for purposes of United States Federal and state securities laws ( provided , that to the extent such Borrower Materials constitute Information, they shall be treated as set forth in Section   11.07 ); (y) all Borrower Materials marked “PUBLIC” are permitted to be made available through a portion of the Platform designated “Public Side Information”; and (z) the Administrative Agent and the Arrangers shall treat any Borrower Materials that are not marked “PUBLIC” as being suitable only for posting on a portion of the Platform not designated “Public Side Information.” Notwithstanding the foregoing, the Borrower shall be under no obligation to mark any Borrower Materials “PUBLIC”.

 

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Notwithstanding anything to the contrary in this Section   7.01 , (a) neither Parent, the Borrower nor its Subsidiaries will be required to make any disclosure to any Creditor Party that (i) is prohibited by law or any bona fide confidentiality agreement in favor of a Person (other than the Borrower or any of its Subsidiaries or Affiliates) (the prohibition contained in which was not entered into in contemplation of this provision), or (ii) is subject to attorney-client or similar privilege or constitutes attorney work product or (iii) in the case of Section   7.01(l) only, creates an unreasonably excessive expense or burden on Parent, the Borrower or any of its Subsidiaries to produce or otherwise disclose; and (b)(i) in the event that the Borrower delivers (or posts) to the Administrative Agent an Annual Report for Parent on Form 10-K for any Fiscal Year, as filed with the SEC, within 90 days after the end of such Fiscal Year, such Form 10-K shall satisfy all requirements of paragraph (a) of this Section 7.01 with respect to such Fiscal Year and (ii) in the event that the Borrower delivers (or posts) to the Administrative Agent a Quarterly Report for Parent on Form 10-Q for any Fiscal Quarter, as filed with the SEC, within 45 days after the end of such Fiscal Quarter, such Form 10-Q shall satisfy all requirements of paragraph (b) of this Section 7.01 with respect to such Fiscal Quarter to the extent that it contains the information required by such paragraph (b); in each case to the extent that information contained in such Form 10-K or Form 10-Q satisfies the requirements of paragraphs (a) or (b) of this Section 7.01 , as the case may be.

7.02 Compliance Certificates . Commencing with the delivery of the financial statements required pursuant to Section 7.01(a) for the first full Fiscal Quarter following the Closing Date, deliver to the Administrative Agent for distribution to the Lenders within the required time period for delivery of financial statements required pursuant to Section   7.01(a) and Section   7.01(b) , Compliance Certificates signed by a Responsible Officer.

ARTICLE VIII

NEGATIVE COVENANTS

So long as the Termination Conditions have not been satisfied, the Borrower shall, and shall cause each of the Restricted Subsidiaries to comply with the following covenants:

8.01 Mergers, Consolidations and Asset Sales . Neither the Borrower nor any Restricted Subsidiary will wind up, liquidate or dissolve its affairs or enter into any transaction of merger or consolidation, or make any Asset Sale, except for:

(a) Asset Sales of obsolete, surplus or worn out property, whether now owned or hereafter acquired, in the ordinary course of business and Asset Sales of property no longer used, useful or economically practicable to maintain in the conduct of the business of the Borrower and the Restricted Subsidiaries, and the termination or assignment of Contractual Obligations (other than the Initial Master Lease or any Similar Leases) to the extent such termination or assignment does not have a Material Adverse Effect;

(b) Asset Sales of inventory and other property in the ordinary course of business;

(c) Asset Sales of equipment to the extent that (i) such property is exchanged for credit against the purchase price of similar replacement property or (ii) the proceeds of such

 

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Asset Sale are applied to the purchase price of such replacement property, in each case within 180 days of receiving the proceeds of such Asset Sale;

(d) Asset Sales not otherwise permitted under this Section 8.01 ; provided that (i) immediately prior to and after giving effect to such Asset Sale, no Event of Default exists and is continuing or would result from such Asset Sale, (ii) immediately after giving effect thereto, the Borrower would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis (including after giving effect to such Asset Sale) as of the last day of the most recent Test Period ended prior to such Asset Sale (regardless of whether the Revolving Facility or the Term A Facility is then in effect), (iii) such Asset Sale shall be, in the good faith determination of the Borrower, for fair market value, (iv) the Borrower or the Restricted Subsidiaries shall receive not less than 75% of such consideration in the form of cash or Cash Equivalents ( provided that, where the property subject to such Asset Sale is Real Property constituting Collateral, the Borrower may, instead of receiving 75% of such consideration in cash or Cash Equivalents, contemporaneously exchange such Real Property for Real Property constituting Collateral the Investment in which is permitted by Section 8.06 so long as (A) the fair market value (as determined on or about the date of such exchange) of the Real Property received in such an exchange is equal to at least 100% of the fair market value (as determined on or about the date of such exchange) of the Real Property disposed of in such exchange (the fair market value of the Real Property transferred and received in such exchange shall be determined with reference to appraisals reasonably satisfactory to the Administrative Agent conducted by appraisal firms reasonably satisfactory to the Administrative Agent) (taking into account the amount of cash or Cash Equivalents received by the Borrower or the Restricted Subsidiaries in such transaction) and (B) all Real Property received in such exchange shall concurrently become Collateral as provided in Section 6.09 (and the Person owning such Real Property shall become a Grantor)), and (v) the Net Available Proceeds therefrom shall be applied as specified in Section   2.04(b)(i) ;

(e) leases and subleases entered into in the ordinary course of business (which, for the avoidance of doubt, includes operating subleases);

(f) dispositions of cash and Cash Equivalents;

(g) any Restricted Subsidiary may merge with (i) the Borrower; provided that the Borrower shall be the continuing or surviving Person, or (ii) any one or more other Restricted Subsidiaries; provided that if one of such Restricted Subsidiaries is a Loan Party then either (x) the surviving Person of such merger must be a Loan Party or (y) if the surviving Person is not a Loan Party, then the merger shall be deemed to be an Investment which must be incurred in accordance with Section 8.06 ;

(h) mergers and consolidations to effect a mere change in the jurisdiction or form of organization of the Borrower or any Restricted Subsidiary; provided that, after giving effect to any such merger or consolidation involving any Borrower or Guarantor, the surviving Person shall be organized under the laws of the United States of America, any state thereof or the District of Columbia;

 

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(i) dissolutions and liquidations of Restricted Subsidiaries; provided that if the transferor of any assets subject to such dissolution and liquidation is a Loan Party, then (x) the transferee must be a Loan Party, (y) if the transferee is a Restricted Subsidiary that is not a Loan Party, then the transfer pursuant to such dissolution or liquidation shall be deemed to be an Investment which must be incurred in accordance with Section 8.06 or (z) if the transferee is not a Restricted Subsidiary, then the transfer pursuant to such dissolution or liquidation shall be deemed to be an Asset Sale and must be made in accordance with another clause of this Section 8.01 ;

(j) the Borrower or any Restricted Subsidiary may merge with any Person; provided that (i) (x) if the Borrower is a party to any such transaction, the Borrower is the surviving Person and (y) otherwise, a Restricted Subsidiary is the surviving Person, (ii) such merger is otherwise permitted as an Investment under Section   8.06 , (iii) no Event of Default shall have occurred and be continuing or result therefrom, (iv) the financial condition of the Borrower and its Subsidiaries is determined by the Borrower in good faith to not be adversely affected thereby, as evidenced by a certificate of a Responsible Officer and (v) the Borrower and the Restricted Subsidiaries execute such amendments to the Loan Documents as may be requested by the Administrative Agent to assure the continued effectiveness of the Guarantee and the continued priority and perfection of any Liens granted in favor of the Administrative Agent by such Persons;

(k) mergers or consolidations in connection with the Transactions on the Closing Date;

(l) Asset Sales of any Property to the extent constituting an Investment permitted by Section   8.06 ;

(m) Asset Sales of (x) assets hereafter acquired pursuant to a Permitted Acquisition or Investment which assets are not used or useful to the principal business of the Borrower and the Restricted Subsidiaries or (y) any existing assets of the Borrower or its Restricted Subsidiaries which are divested in order to effectuate a Permitted Acquisition or Investment; provided , that not less than 75% of the aggregate consideration received therefrom shall be paid in cash or Cash Equivalents and the Net Available Proceeds thereof shall be applied as set forth in Section   2.04(b)(i) ;

(n) any sale, transfer or other Asset Sales required pursuant to any Transfer Agreement; provided , that the Net Available Proceeds thereof shall be applied as set forth in Section   2.04(b)(i) ;

(o) any Asset Sales by the Borrower or any Restricted Subsidiary of property pursuant to a Permitted Sale Leaseback; provided , that the Net Available Proceeds thereof shall be applied as set forth in Section   2.04(b)(i) ;

(p) any Asset Sale by the Borrower or any Restricted Subsidiary to the Borrower or any Restricted Subsidiary;

 

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(q) any sale, transfer or other Asset Sales of any aircraft and any assets directly related to the operation thereof and any limited liability company or other special purpose vehicle that has been organized solely to own any aircraft and related assets;

(r) any sales or other dispositions of assets that do not constitute Asset Sales;

(s) leases or subleases not interfering in any material respect with the ordinary conduct of the business of the Loan Parties (which, for the avoidance of doubt, includes operating subleases) and licenses or sublicenses of Intellectual Property made in the ordinary course of business;

(t) Asset Sales consisting of discounting or forgiveness of accounts receivable in the ordinary course of business or in connection with the collection or compromise thereof;

(u) (i) termination of leases (other than the Initial Master Lease) and Swap Contracts in the ordinary course of business, (ii) the expiration of any option agreement in respect of real or personal property and (iii) any surrender or waiver of contractual rights (other than under the Initial Master Lease) or the settlement, release or surrender of contractual rights (other than under the Initial Master Lease) or other litigation claims (including in tort) in the ordinary course of business;

(v) the settlement or early termination of any Permitted Bond Hedge Transaction and the settlement or early termination of any related Permitted Warrant Transaction; and

(w) any Asset Sale consisting of the grant of Acceptable Land Use Arrangements.

8.02 Limitation on Lines of Business . Neither the Borrower nor any Restricted Subsidiary shall make any material change in the general nature of the business of the Borrower and its Restricted Subsidiaries as conducted on the Closing Date, including the acquisition, investment in, ownership, development, redevelopment, leasing, operation, sale and disposition of real estate and real estate-related assets (it being acknowledged that any similar, complementary, ancillary or related businesses are not material changes in the general nature of the business of the Borrower and its Restricted Subsidiaries); provided that the acquisition, investment in, ownership, development, redevelopment, leasing and operation of assets that are not currently, and are not expected to be developed or redeveloped into, Related Businesses shall not exceed 25.0% of Adjusted Total Assets.

8.03 Liens . Neither the Borrower nor any Restricted Subsidiary shall create, incur, grant or assume, directly or indirectly, any Lien on any Property now owned or hereafter acquired by it or on any income or revenues or rights in respect of any thereof, except:

(a) Permitted Encumbrances;

(b) Liens securing the Obligations under the Loan Documents, Secured Cash Management Agreements and Secured Hedge Agreements;

 

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(c) Liens in existence on the Closing Date and Liens relating to any refinancing of the obligations secured by such Liens; provided , that such Liens do not encumber any Property other than the Property (including proceeds) subject thereto on the Closing Date;

(d) purchase money Liens securing Indebtedness and Capital Leases permitted under Section   8.04(d) ; provided , that any such Liens attach only to the property being financed pursuant to such purchase money Indebtedness or Capital Leases (or refinancings thereof and) directly related assets, including proceeds and replacements thereof;

(e) Liens granted on the Equity Interests in a Person which is not a Restricted Subsidiary, including customary rights of first refusal, “tag-along” and “drag-along” rights, transfer restrictions and put and call arrangements with respect to the Equity Interests of any Joint Venture pursuant to any Joint Venture or similar agreement;

(f) Liens in respect of Permitted Sale Leasebacks, limited to the Property subject to such Permitted Sale Leaseback;

(g) Liens on cash, Cash Equivalents or other property arising in connection with the defeasance, discharge or redemption of Indebtedness;

(h) other Liens securing Indebtedness outstanding in an aggregate principal amount of not more than $75,000,000;

(i) Liens on property that the Borrower or its Restricted Subsidiaries are insured against by title insurance; provided that such Lien would not reasonably be expected to impair the ability to place mortgage financing on the Real Property encumbered by such Lien, which mortgage financing includes title insurance coverage against such Lien;

(j) Liens on (x) property acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof that are in place at the time such property is so acquired and are not created (but may have been amended) in contemplation of such acquisition or (y) property of Persons that are acquired by the Borrower or any of its Restricted Subsidiaries after the date hereof that are in place at the time such Person is so acquired and are not created (but may have been amended) in contemplation of such acquisition;

(k) Liens securing assessments or charges payable to a property owner association or similar entity, which assessments are not yet due and payable or are being contested in good faith by appropriate proceedings diligently conducted, and for which adequate reserves with respect thereto, to the extent required by GAAP, are maintained on the books of the applicable Person;

(l) Liens securing assignments to a reverse Section 1031 exchange trust; and

(m) Liens securing Interim Assumed Drop-Down Indebtedness; provided that (i) such Liens secure only the Property acquired in connection with the Drop-Down Transaction, (ii) to the extent such Liens remain outstanding after the date that is fifteen (15) days after the original incurrence of such Indebtedness, such Liens shall no longer be permitted to be incurred pursuant to this clause (m) and must otherwise be permitted pursuant to another

 

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provision of this Section 8.03 and (iii) to the extent such Interim Assumed Drop-Down Indebtedness is extended, refinanced, renewed or replaced, no Liens securing any replacement Indebtedness shall be permitted to be incurred pursuant to this clause (m);

provided that this Section 8.03 shall not be effective to prohibit the Liens with respect to securities issued by any gaming licensee to the extent that appropriate or required approvals of this covenant have not been obtained under applicable Gaming Laws.

For purposes of determining compliance with this Section 8.03 , in the event that the creation or imposition of any Lien upon or with respect to any Property (or any portion thereof) meets the criteria of more than one of the categories of permitted Liens described in clauses (a) through (m) above, the Borrower may, in its sole discretion, at the time of creation or imposition, divide or classify such Lien (or any portion thereof) under any clause under which it would then be permitted to be created or imposed, and at any future time may divide, classify or reclassify such Lien (or any portion thereof) under any clause under which it would be permitted to be created or imposed at such later time, and in each case will only be required to include the interest encumbered by such Lien in one or more of the above clauses; provided that Liens securing the Obligations shall at all times be deemed to have been incurred pursuant to clause (b) above.

8.04 Indebtedness . Neither the Borrower nor any of the Restricted Subsidiaries will incur any Indebtedness, except:

(a) Existing Indebtedness and any Permitted Refinancings thereof;

(b) obligations (contingent or otherwise) existing or arising under any Swap Contract (including Secured Hedge Agreements) entered into for the purpose of mitigating risks associated with fluctuations in interest rates (including both fixed to floating and floating to fixed contracts), foreign exchange rates or commodity price fluctuations in a non-speculative manner;

(c) Indebtedness under the Loan Documents and Secured Cash Management Agreements;

(d) (i) Capital Leases and (ii) Indebtedness secured by purchase money Liens, in an aggregate outstanding principal amount for clauses (i) and (ii) on a combined basis not to exceed $50,000,000 at any time;

(e) Indebtedness incurred in connection with any Permitted Sale Leaseback and any Permitted Refinancing in respect thereof;

(f) Indebtedness of the Borrower or any Restricted Subsidiary owed to the Borrower or any Restricted Subsidiary; provided , that Indebtedness of any Restricted Subsidiary that is not a Loan Party owing to the Borrower or any Loan Party shall be subject to Section 8.06(d) ; provided , further , that (except to the extent prohibited by applicable Gaming Law) Indebtedness of any Loan Party owing to a Restricted Subsidiary that is not a Loan Party shall be subordinated to the Obligations on terms reasonably satisfactory to the Administrative Agent;

 

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(g) Indebtedness in respect of netting services, overdraft protections and otherwise in connection with deposit accounts, commercial credit cards, stored value cards, purchasing cards and treasury management services, including any obligations pursuant to Cash Management Agreements, and other netting services, overdraft protections, automated clearing-house arrangements, employee credit card programs, controlled disbursement, ACH transactions, return items, interstate depository network service, Society for Worldwide Interbank Financial Telecommunication transfers, cash pooling and operational foreign exchange management, and in each case, similar arrangements and otherwise in connection with cash management, including cash management arrangements among the Borrower and its Subsidiaries;

(h) Guaranty Obligations of the Borrower or any Restricted Subsidiary in respect of any Indebtedness of the Borrower Group not prohibited hereunder;

(i) Guaranty Obligations of the Borrower pursuant to the matters described in any indemnity agreement entered into for the benefit of a title company that has been engaged by the Borrower and its Restricted Subsidiaries;

(j) subject to the conditions set forth in Section   8.06(l) or (m) , as applicable, Guaranty Obligations of the Indebtedness of Joint Ventures and Unrestricted Subsidiaries (which Guaranty Obligations shall for the avoidance of doubt reduce amounts available pursuant to Section   8.06(l) or (m) , as applicable, on a dollar-for-dollar basis), if (i) both before and after giving effect to the incurrence of such Guaranty Obligations, no Event of Default has occurred or is continuing, and (ii) the applicable dollar limitations set forth in Section   8.06(l) or (m) , as the case may be, would not be exceeded after giving effect to such incurrence when aggregated (without duplication) with all Guaranty Obligation incurred pursuant to this clause (j) in reliance on the applicable clause of Section   8.06 if such Guaranty Obligation were being incurred as an Investment thereunder;

(k) the Senior Unsecured Notes and Permitted Refinancings thereof;

(l) (i) other additional Indebtedness of the Loan Parties (including any portion of any renewal, financing, or extension of Existing Indebtedness or of the Senior Unsecured Notes to the extent such portion does not meet the criteria set forth in clause (a) or (k) above, as applicable) as long as, (A) immediately after giving effect thereto, the Borrower would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis (including after giving effect to the incurrence or assumption of such Indebtedness) as of the last day of the most recent Test Period ended prior to the incurrence or assumption of such Indebtedness (regardless of whether the Revolving Facility or the Term A Facility is then in effect) and (B) in the case of all Indebtedness incurred pursuant to this clause (l)(i) in excess of $100,000,000 at any time outstanding, the Permitted Debt Conditions are satisfied and (ii) Permitted Refinancings thereof;

(m) Indebtedness of any Subsidiary supported by a Letter of Credit in an aggregate principal amount not to exceed the stated amount of such Letter of Credit (but which stated amount may include the amount of any anticipated premiums, expenses (including upfront fees and original issue discount) and any accretion in the principal amount thereof);

 

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(n) contractual indemnity obligations entered into in the ordinary course of business in connection with the normal course of operation of its casinos and other property;

(o) (i) Indebtedness (x) of a Person that becomes a Restricted Subsidiary after the date hereof, that existed at the time such Person became a Restricted Subsidiary and was not created (but may have been amended) in anticipation or contemplation thereof and (y) assumed in connection with any Investment permitted under this Agreement and not created (but may have been amended) in anticipation or contemplation thereof, in each case under this clause (i), as long as immediately after giving effect thereto, the Borrower would be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis (including after giving effect to the incurrence or assumption of such Indebtedness) as of the last day of the most recent Test Period ended prior to the incurrence or assumption of such Indebtedness (regardless of whether the Revolving Facility or the Term A Facility is then in effect) and (ii) any Permitted Refinancing in respect thereof;

(p) without duplication of any other Indebtedness, all premiums (if any), interest (including post-petition interest and payment-in-kind interest), accretion or amortization of original issue discount, fees, expenses and charges with respect to Indebtedness permitted hereunder;

(q) Indebtedness of a Restricted Subsidiary that is a non-Loan Party in an amount not to exceed $20,000,000 in the aggregate for all such Restricted Subsidiaries at any time and, without duplication, Permitted Refinancings thereof; and

(r) Indebtedness constituting Interim Assumed Drop-Down Indebtedness; provided that (i) to the extent such Indebtedness remains outstanding after the date that is fifteen (15) days after the original incurrence thereof, such Indebtedness shall no longer be permitted to be incurred pursuant to this clause (r) and must otherwise be permitted under another provision of this Section 8.04 and (ii) to the extent such Indebtedness is extended, refinanced, renewed or replaced, such extension, refinancing, renewal or replacement, as applicable, shall not be permitted pursuant to this clause (r).

For purposes of determining compliance with this Section 8.04 , in the event that the incurrence of an item of Indebtedness (or any portion thereof) meets the criteria of more than one of the categories of permitted Indebtedness described in clauses (a) through (r) above, the Borrower may, in its sole discretion, at the time of incurrence, divide or classify such item of Indebtedness (or any portion thereof) under any clause under which it would then be permitted to be incurred, and at any future time may divide, classify or reclassify such item of Indebtedness (or any portion thereof) under any clause under which it would be permitted to be incurred at such later time, and in each case will only be required to include the amount and type of such Indebtedness in one or more of the above clauses; provided that all Indebtedness outstanding under the Loan Documents shall at all times be deemed to have been incurred pursuant to clause (c) above.

8.05 Payments of Certain Indebtedness . Neither the Borrower nor any of the Restricted Subsidiaries will voluntarily prepay, redeem, purchase, defease or otherwise satisfy

 

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any Prepayment Restricted Indebtedness, except the Borrower and its Restricted Subsidiaries may make:

(a) regularly scheduled or required repayments or redemptions of such Indebtedness;

(b) to the extent exchanged for Equity Interests in the Borrower or using the proceeds of the issuance of Equity Interests in the Borrower;

(c) additional payments in respect of Prepayment Restricted Indebtedness in an aggregate principal amount not to exceed $100,000,000;

(d) additional prepayments, redemptions, purchases or defeasances in an amount not to exceed the Available Excluded Contribution Amount on the date of such prepayment, redemption, purchase, defeasance or satisfaction that the Borrower elects to apply to this Section   8.05(d) ; provided that no Event of Default has occurred and is continuing or would result therefrom;

(e) pursuant to refinancings of such Indebtedness permitted under Section   8.04 , including pursuant to Permitted Refinancings;

(f) the prepayment of the Loans in accordance with the terms of this Agreement;

(g) the prepayment of the Bridge Credit Agreement on the Closing Date and the prepayment of Interim Assumed Drop-Down Indebtedness; and

(h) any redemption permitted above shall be permitted to be made within 60 days after the date of a redemption notice with respect thereto, if at the date of such notice, the prepayment of the Indebtedness specified in the redemption notice would have complied with the provisions of this Section 8.05 .

8.06 Investments, Loans and Advances . Neither Borrower nor any Restricted Subsidiary will make any Investment, except for the following:

(a) Investments consisting of cash and Cash Equivalents at the time made;

(b) advances to officers, directors and employees of the Borrower or the Restricted Subsidiaries in the ordinary course of business for travel, entertainment, relocation and analogous ordinary business purposes;

(c) Investments outstanding on the Closing Date;

(d) (i) Investments by the Loan Parties in Loan Parties, (ii) Investments by Restricted Subsidiaries that are not Loan Parties in other Restricted Subsidiaries that are not Loan Parties, (iii) Investments by the Loan Parties in Restricted Subsidiaries that are not Loan Parties; provided that, other than with respect to Restricted Subsidiaries that are prohibited from becoming a Guarantor by applicable Gaming Laws, the aggregate amount of Investments

 

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under this clause (iii) shall not exceed $50,000,000 at any time outstanding and (iv) Investments by Restricted Subsidiaries that are not Loan Parties in Loan Parties;

(e) (i) Investments consisting of extensions of credit in the nature of accounts receivable, notes receivable or other advances (including letters of credit and cash collateral) arising from the grant of trade credit or similar arrangements with suppliers, distributors, tenants, licensors or licensees in the ordinary course of business, (ii) Investments received in satisfaction or partial satisfaction thereof from financially troubled account debtors to the extent reasonably necessary in order to prevent or limit loss and (iii) Investments in securities of trade creditors or customers received pursuant to any plan of reorganization or similar arrangement upon the bankruptcy or insolvency of such trade creditors or customers or in settlement of delinquent or overdue accounts in the ordinary course of business;

(f) Guaranty Obligations permitted by Section   8.04 (other than pursuant to clause (j) thereof) and guarantees of obligations not constituting Indebtedness;

(g) Investments in Swap Contracts permitted under Section   8.04(b) ;

(h) Investments in Income Properties and other Property ancillary or reasonably related to such Income Properties;

(i) Investments in Redevelopment Property, Development Property and undeveloped land (including, without duplication, Investments of the type described in clause (a) and clause (c) (with respect to indebtedness) of the definition of “Investment” secured by any such property or utilized in the redevelopment or development of such property) to be owned or leased by the Borrower or a Restricted Subsidiary and Investments of the type described in Section 8.06(q)(iii) below; provided that the aggregate book value of all such Investments outstanding at the time any such Investment is made (after giving effect to such Investment) does not exceed 30.0% of Adjusted Total Assets calculated as of the last day of the Test Period ended immediately preceding the date of such Investment on a Pro Forma Basis (including after giving effect to such Investment (as if it had been made during such Test Period)); provided , further , that the aggregate book value of all Investments in undeveloped land made pursuant to this clause (i) outstanding at the time any such Investment in undeveloped land is made (after giving effect to such Investment) does not exceed 10.0% of Adjusted Total Assets calculated as of the last day of the Test Period ended immediately preceding the date of such Investment on a Pro Forma Basis (including giving effect to such Investment (as if it had been made during such Test Period)). For the avoidance of doubt, Investments in Redevelopment Property, Development Property and undeveloped land shall cease to constitute Investments therein for purposes of this clause (i) at the time such assets cease to constitute Redevelopment Property, Development Property or undeveloped land, as applicable;

(j) Permitted Acquisitions;

(k) Investments made substantially contemporaneously with the issuance by the Borrower of any Convertible Debt in derivative securities or similar products purchased by the Borrower in connection therewith linked to Equity Interests underlying such Convertible Debt;

 

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(l) Investments in an aggregate outstanding amount not at any time in excess of the Available Excluded Contribution Amount on the date of such Investment that the Borrower elects to apply to this Section   8.06(l) ;

(m) Investments which do not exceed $300,000,000;

(n) any acquisition or Investment to the extent made using Equity Interests of the Borrower or the Parent (other than Disqualified Equity Interests and Equity Interests the net cash proceeds of which are included in the Available Excluded Contribution Amount);

(o) to the extent constituting Investments, transactions expressly permitted under Sections   8.01 (including the receipt of permitted noncash consideration for the dispositions of assets permitted thereunder), 8.03 , 8.04 and 8.07 ;

(p) Investments arising as a result of Permitted Sale Leasebacks;

(q) Investments consisting of (i) loans and other extensions of credit to tenants in the ordinary course of business so long as the proceeds thereof are primarily used for tenant improvements, (ii) loans and other extensions of credit to contractors in the ordinary course of business in order to facilitate the purchase of machinery and tools by such contractors and (iii) loans and other extensions of credit to owners and lessors of Property so long as the proceeds thereof are used to develop such Property and such Property is intended to be acquired by the Borrower or a Restricted Subsidiary (or the Borrower or such Restricted Subsidiary has entered into a binding agreement to acquire such property);

(r) Investments of a Person that becomes a Restricted Subsidiary after the date hereof, that existed at the time such Person became a Restricted Subsidiary and was not created in anticipation or contemplation thereof;

(s) obligations of the Borrower or any Restricted Subsidiary with respect to indemnifications of title insurance companies issuing title insurance policies in relation to construction Liens;

(t) Investments in the nature of pledges or deposits with respect to leases or utilities provided to third parties in the ordinary course of business;

(u) guarantees by the Borrower or any Restricted Subsidiary of operating leases (other than Capital Leases) or of other obligations that do not constitute Indebtedness, in each case, entered into by the Borrower or any Restricted Subsidiary in the ordinary course of business;

(v) operating leases and subleases of any real or personal property in the ordinary course of business;

(w) Investments made by the Borrower or any Restricted Subsidiary pursuant to or in connection with the Transactions and as contemplated by the Transaction Agreements and any amendment, modification or extension thereto and similar agreements entered into after the Closing Date with MGM Resorts or any of its Affiliates to the extent such similar agreement or

 

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amendment, modification or extension, taken as a whole, is not (i) adverse to the Lenders in any material respect or (ii) more disadvantageous to the Lenders than the relevant transaction in existence on the Closing Date in any material respect; and

(x) Permitted Bond Hedge Transactions which constitute Investments.

For purposes of this Section 8.06 , (i) at the time of any Designation of any Subsidiary as an Unrestricted Subsidiary, the Borrower shall be deemed to have made an Investment in an amount equal to its direct or indirect pro rata ownership interest in the fair market value of the net assets of such Subsidiary at the time of such Designation; provided , however , that to the extent a Joint Venture becomes a Subsidiary and is substantially concurrently Designated as an Unrestricted Subsidiary, the amount deemed invested upon such Designation will not include amounts previously invested in such Joint Venture in compliance with this Section 8.06  and (ii) at the time of Revocation of any such Designation, the amount of Investments otherwise then available to be made under clauses (l) or (m) of this Section   8.06 shall be deemed increased by (x) the amount of deemed Investment made under such clauses (l) and (m) pursuant to the immediately preceding clause (i) plus (y) the amount of Investments in such Subsidiary made since its Designation as an Unrestricted Subsidiary pursuant to such clauses (l) and (m) .

For purposes of determining compliance with this Section 8.06 , in the event that an Investment (or any portion thereof) meets the criteria of more than one of the categories of permitted Investments described in clauses (a) through (x) above, the Borrower may, in its sole discretion, at the time of Investment, divide or classify such Investment (or any portion thereof) under any clause under which it would then be permitted to be made, and at any future time may divide, classify or reclassify such Investment (or any portion thereof) under any clause under which it would be permitted to be made at such later time, and in each case will only be required to include the amount and type of such Investment in one or more of the above clauses.

8.07 Restricted Payments . Neither the Borrower nor the Restricted Subsidiaries shall at any time, directly or indirectly, declare or make any Restricted Payment, or incur any obligation (contingent or otherwise) to do so, except:

(a) each Restricted Subsidiary may make Restricted Payments to the Borrower, any of the Borrower’s Subsidiaries that are Guarantors and any other Person that owns a direct Equity Interest in such Subsidiary, ratably according to their respective holdings of the type of Equity Interest in respect of which such Restricted Payment is being made (and, in the case of a Restricted Payment by a non-wholly owned Restricted Subsidiary, to the Borrower and its Restricted Subsidiaries and to each other owner of Equity Interests of such Restricted Subsidiary based on their relative ownership interests and to the extent required under the Organizational Documents of any non-wholly owned Restricted Subsidiary, based on the formulation required in such Organizational Documents);

(b) the Borrower and each Restricted Subsidiary may declare and make dividend payments or other distributions payable solely in the common stock or other common Equity Interests of such Person (including, in the case of the Borrower, its limited partnership units);

 

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(c) a Restricted Subsidiary may issue Equity Interests to the extent constituting an Asset Sale permitted by Section   8.01 or Investment permitted by Section   8.06 ;

(d) the Borrower and its Restricted Subsidiaries may declare and make Restricted Payments not to exceed 95% of Funds from Operations in the aggregate in any Fiscal Year if, and only if, at the time of such Restricted Payment and immediately after giving effect thereto, no Event of Default shall exist hereunder and the Borrower would be in Pro Forma Compliance with the financial covenants set forth in Section 8.11 as of the last day of the most recent Test Period ended prior to such Restricted Payment, as applicable (regardless of whether the Revolving Facility or the Term A Facility is then in effect);

(e) the Borrower may, in any Fiscal Year, declare and make cash distributions ratably to the holders of the Borrower’s Equity Interests according to their respective holdings of the type of Equity Interests in respect of which such Restricted Payment is being made, to the extent necessary for Parent to (and only so long as Parent shall) distribute cash dividends to the holders of its Equity Interests in an amount not to exceed the minimum amount required for Parent to qualify as, and maintain its qualification as, a REIT and for Parent to avoid the payment of federal or state income or excise tax;

(f) the Borrower and its Restricted Subsidiaries may make Restricted Payments in an amount not to exceed the Available Excluded Contribution Amount on the date of such Restricted Payment that the Borrower elects to apply to this Section   8.07(f) ; provided that no Event of Default has occurred and is continuing or would result therefrom;

(g) the Borrower may pay any dividend within 60 days after the date of declaration thereof if at the date of such declaration, the dividend would have complied with the provisions hereof;

(h) the Borrower may make Restricted Payments pursuant to or in connection with the Transactions and as contemplated by the Transaction Agreements and any amendment, modification or extension thereto and similar agreements entered into after the Closing Date with MGM Resorts or any of its Affiliates to the extent such similar agreement or amendment, modification or extension, taken as a whole, is not (i) adverse to the Lenders in any material respect or (ii) more disadvantageous to the Lenders than the relevant transaction in existence on the Closing Date in any material respect;

(i) the Borrower may make Restricted Payments to MGM Resorts or its Subsidiaries in connection with the reimbursement of MGM Resorts or its Subsidiaries for any costs and expenses incurred by MGM Resorts or its Subsidiaries associated with the formation of the Borrower and its Subsidiaries (including such costs and expenses incurred prior to the Closing Date);

(j) so long as no Default or Event of Default shall have occurred and be continuing or shall be caused thereby, Borrower may make Restricted Payments to Parent to the extent necessary to permit Parent to pay general administrative costs and expenses (including corporate overhead, legal or similar expenses, audit and other accounting and reporting expenses and customary wages, salary, bonus and other benefits payable to directors, officers,

 

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employees, members of management, consultants and/or independent contractors of Parent), franchise fees, franchise Taxes and similar fees, Taxes and expenses required to maintain the organizational existence of Parent, in each case, which are reasonable and customary and incurred in the ordinary course of business, plus any reasonable and customary indemnification claims made by current or former directors, officers, members of management, employees or consultants of Parent, in each case, to the extent attributable to the ownership or operations of the Borrower and its Subsidiaries;

(k) the making of cash payments in connection with any conversion of Convertible Debt in an aggregate amount since the Closing Date not to exceed the sum of (i) the principal amount of such Convertible Debt (less any amounts thereof that have been included in the Available Excluded Contribution Amount), plus (ii) any payments received by the Borrower or any of its Restricted Subsidiaries pursuant to the exercise, settlement or termination of any related Permitted Bond Hedge Transaction; and

(l) any payments in connection with (i) a Permitted Bond Hedge Transaction and (ii) the settlement of any related Permitted Warrant Transaction (A) by delivery of shares of Parent’s common stock upon settlement thereof or (B) by (1) set-off against the related Permitted Bond Hedge Transaction or (2) payment of an early termination amount thereof in common stock upon any early termination thereof.

8.08 Limitation on Certain Restrictions Affecting Subsidiaries . None of the Borrower or the Restricted Subsidiaries shall enter into or permit to exist any Contractual Obligation that limits the ability (a) of any Restricted Subsidiary to make Restricted Payments to the Borrower or (b) of the Borrower or any Restricted Subsidiary to create, incur, assume or suffer to exist Liens on property of such Person to secure the Obligations; provided that the foregoing clauses (a) and (b) shall not apply to Contractual Obligations which exist under or by reason of:

(i) applicable law, rule, regulation or order (including requirements imposed by any Gaming Authority, Gaming Laws and any regulations, orders or decrees of any Gaming Authority or other applicable Governmental Authority);

(ii) this Agreement, the other Loan Documents, any Secured Hedge Agreement or any Secured Cash Management Agreement;

(iii) any documents governing any Permitted Refinancings and any agreement effecting a refinancing, replacement or substitution, extension, renewal or restructuring of Indebtedness issued, assumed or incurred pursuant to an agreement or instrument permitted under this Agreement;

(iv) customary provisions restricting subletting, transfer, license or assignment of any lease governing any leasehold interest of the Borrower or any of its Restricted Subsidiaries or otherwise relating to the assets subject thereto;

(v) customary provisions restricting transfer, license or assignment of any licensing agreement or other contract (or otherwise relating to the assets subject thereto) entered into by the Borrower or its Restricted Subsidiaries in the ordinary course of business;

 

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(vi) restrictions on the transfer of any asset or Subsidiary or the payment of dividends or other distributions or the making of loans or advances by that Subsidiary pending the close of the sale of such asset or Subsidiary;

(vii) restrictions on the transfer of any asset subject to a Lien permitted by Section 8.03 ;

(viii) any agreement or instrument incurred or assumed in connection with a Permitted Acquisition or other permitted Investment, which encumbrance or restriction is not applicable to any Person or the properties or assets of any Person, other than the Person or the properties or assets of the Person acquired pursuant to the respective Permitted Acquisition or permitted Investment and so long as the respective encumbrances or restrictions were not created (or made more restrictive) in connection with or in anticipation of the respective Permitted Acquisition or permitted Investment;

(ix) restrictions applicable to any Unrestricted Subsidiary or any Joint Venture (or the Equity Interests thereof);

(x) customary negative pledges and restrictions on Liens in favor of any holder of Indebtedness for borrowed money permitted under Section 8.04 ;

(xi) encumbrances or restrictions on cash or other deposits or net worth imposed by customers under agreements entered into in the ordinary course of business;

(xii) Contractual Obligations which (x) exist on the Closing Date and (y) to the extent Contractual Obligations permitted by clause (x) are set forth in an agreement evidencing Indebtedness, or any agreement evidencing any permitted modification, replacement, renewal, extension or refinancing of such Indebtedness so long as such modification, replacement, renewal, extension or refinancing is not (taken as a whole) materially less favorable to the Lenders;

(xiii) restrictions binding on a Restricted Subsidiary at the time such Restricted Subsidiary first becomes a Restricted Subsidiary of the Borrower, so long as such Contractual Obligations were not entered into solely in contemplation of such Person becoming a Restricted Subsidiary of the Borrower;

(xiv) restrictions on (x) cash or other deposits constituting Permitted Encumbrances or otherwise permitted by Section 8.03 or (y) cash earnest money deposits in favor of sellers in connection with acquisitions not prohibited hereunder;

(xv) encumbrances or restrictions contained in the Master Leases; provided that such encumbrances or restrictions apply solely to the Property subject to the applicable Master Lease;

(xvi) customary provisions in partnership agreements, limited liability company organizational governance documents, joint venture agreements and other similar agreements that restrict the transfer of ownership interests in such partnership, limited liability company, joint venture or similar Person or provisions in agreements or instruments which prohibit the payment of dividends or the making of other distributions with respect to any class of capital stock of a Person other than on a pro rata basis,

 

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(xvii) documents or instruments relating to Indebtedness otherwise permitted hereunder; provided that the restrictive provisions in any such documents or instruments are no more onerous, taken as a whole, than the restrictive provisions in the Loan Documents;

(xviii) the Senior Unsecured Note Documents and the documents governing Permitted Refinancings of the Senior Unsecured Notes; provided that such Permitted Refinancing does not contain restrictions or encumbrances that, taken as a whole, are more onerous in any material respect than those contained in the Senior Unsecured Note Documents as in effect on the date hereof; and

(xix) other restrictions or encumbrances that are, in the good faith judgment of the Borrower, not materially more restrictive with respect to such encumbrances and other restrictions, taken as a whole, than the corresponding restrictions or encumbrances hereunder.

8.09 Transactions with Affiliates . Neither the Borrower nor any of the Restricted Subsidiaries shall hereafter enter into any transaction of any kind with any of their Affiliates (other than transactions between or among the Borrower and the Restricted Subsidiaries) with a value in excess of $25,000,000 in the aggregate for any transaction or series of related transactions other than on terms and conditions (taken as a whole) that are not materially less favorable to the Borrower or such Restricted Subsidiary as would be obtainable by the Borrower or such Restricted Subsidiary at the time in a comparable arm’s length transaction with a Person other than an Affiliate, except that the following in any event shall not be prohibited by this Section 8.09 ;

(a) (i) license or lease agreements with any Unrestricted Subsidiary or Joint Venture on terms which, taken as a whole together with all related transactions with such Unrestricted Subsidiary or Joint Venture, are commercially reasonable, (ii) other agreements and transactions in the ordinary course of business (and reasonable extensions of such course of business) with, or for the benefit of, any Unrestricted Subsidiary or Joint Venture on terms which are materially consistent with the past practices of the Borrower, and (iii) any agreement by an Unrestricted Subsidiary or Joint Venture to pay management, development or other similar fees to the Loan Parties, directly or indirectly, relating to the provision of management services, overhead, sharing of customer lists and customer loyalty programs;

(b) the issuance, sale or transfer of the Equity Interests of the Borrower to any parent entity, including in connection with capital contributions by such parent entity to the Borrower or any Restricted Subsidiary;

(c) transactions related to the issuance, sale or transfer of the Equity Interests of the Borrower to any parent entity, including in connection with capital contributions by such parent entity to the Borrower or any Restricted Subsidiary;

(d) transactions undertaken for the purpose of improving the consolidated tax efficiency of any parent entity of the Borrower and/or the Restricted Subsidiaries (provided that such transactions, taken as a whole, are not materially adverse to the Borrower and the Restricted Subsidiaries (as determined by the Borrower in good faith));

 

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(e) payments of compensation, perquisites and fringe benefits arising out of any employment or consulting relationship in the ordinary course of business;

(f) [reserved];

(g) the Transactions contemplated by the Transaction Agreements (including the payment of fees and expenses in connection therewith) and any amendment, modification or extension thereto and similar agreements entered into after the Closing Date with MGM Resorts or any of its Affiliates to the extent such similar agreement or amendment, modification or extension, taken as a whole, is not (i) adverse to the Lenders in any material respect or (ii) more disadvantageous to the Lenders than the relevant transaction in existence on the Closing Date in any material respect;

(h) employment and severance arrangements between the Borrower or any of its Subsidiaries and their respective officers and employees in the ordinary course of business and transactions pursuant to stock option plans and employee benefit plans and arrangements;

(i) the payment of customary fees and reasonable out of pocket costs to, and indemnities provided on behalf of, directors, managers, officers, employees and consultants of the Borrower and its Subsidiaries in the ordinary course of business to the extent attributable to the ownership, management or operation of the Borrower and its Subsidiaries;

(j) transactions contemplated by each applicable Transfer Agreement;

(k) [reserved];

(l) Asset Sales permitted by Section 8.01(g) , (h) , (i) , (l) and (p) , Liens permitted by Section 8.03(a) , Indebtedness permitted by Section 8.04(f) , (h) , (j) , (o) , (q) and (r) , Investments permitted by Section 8.06 and Restricted Payments permitted by Section 8.07 ;

(m) (i) the exercise by the Borrower of rights under derivative securities linked to Equity Interests underlying Convertible Debt or similar products purchased by the Borrower in connection with the issuance of Convertible Debt and (ii) any termination fees or similar payments in connection with the termination of warrants or other Equity Interests issued in connection with such Convertible Debt;

(n) transactions and agreements disclosed or referred to in Parent’s Form S-11 registration statement as filed with the SEC on or prior to the Closing Date (in each case, including any amendment, modification or extension thereto to the extent such amendment, modification or extension, taken as a whole, is not (i) adverse to the Lenders in any material respect or (ii) more disadvantageous to the Lenders than the relevant transaction in existence on the Closing Date in any material respect);

(o) agreements with Joint Ventures and Unrestricted Subsidiaries to facilitate arrangements permitted by clauses (d) and (e) of the definition of “Permitted Encumbrances”;

 

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(p) future leases and subleases between MGM Resorts or its Subsidiaries and the Borrower or its Restricted Subsidiaries to the extent any such future lease or sublease is not adverse to the Lenders in any material respect; and

(q) transactions (A) approved by (i) a majority of the disinterested members of the board of directors of Parent or (ii) a majority of the conflicts committee of Parent constituted as set forth in the limited liability company agreement of Parent (as in effect from time to time) or (B) for which the Borrower or any Restricted Subsidiary delivers to the Administrative Agent a written opinion of an independent qualified real estate appraisal firm or a nationally recognized investment banking, accounting or appraisal firm, stating that the transaction is fair to the Borrower or such Restricted Subsidiary from a financial point of view.

8.10 Limitation on Changes to Fiscal Year . The Borrower shall not, and shall not permit Parent to, change its Fiscal Year end (December 31 of each year) unless required to do so by law or by then prevailing auditing standards or at the request of any Governmental Authority.

8.11 Financial Covenants . The Borrower Group shall have or maintain on a consolidated basis, with respect to the Revolving Facility and the Term A Facility only:

(a) a Senior Secured Net Debt to Adjusted Total Assets Ratio of not more than 0.40 to 1.00 as of the last day of any Fiscal Quarter of the Borrower (commencing with the first full Fiscal Quarter following the Closing Date);

(b) a Total Net Debt to Adjusted Total Assets Ratio of not more than 0.60 to 1.00 as of the last day of any Fiscal Quarter of the Borrower (commencing with the first full Fiscal Quarter following the Closing Date); provided , however , that during a Significant Acquisition Period (and in connection with calculations to determine whether such Significant Acquisition or any related Indebtedness will result in the Borrower being in compliance with Section 8.11 on a Pro Forma Basis), such ratio shall be increased to 0.65 to 1.00; and

(c) an Interest Coverage Ratio of not less than 2.00 to 1.00 as of the last day of any Fiscal Quarter of the Borrower (commencing with the first full Fiscal Quarter following the Closing Date).

8.12 Master Leases .

(a) The Borrower shall not enter into any amendment, modification, consent or waiver of any term of the Master Leases, in a manner that is (as reasonably determined by the Borrower on the date of effectiveness of such amendment, modification, consent or waiver) materially adverse to the Lenders (in their capacities as such); provided that the Borrower shall not enter into or permit any amendment, modification, consent or waiver of the Initial Master Lease with respect to any provision of the Initial Master Lease that has the effect of shortening the initial term of the Initial Master Lease to a date earlier than the tenth (10 th ) anniversary of the Closing Date (it being understood that any removal of a property from the Initial Master Lease in accordance with its terms shall not, by itself, constitute a shortening of the term of the Initial Master Lease).

 

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(b) Cause the number of Income Properties which are Mortgaged Real Properties that are subject to a Master Lease to be less than 6 at any time.

8.13 Use of Proceeds; Anti-Corruption Law; Sanctions . The Borrower shall not use, directly or indirectly, any part of the proceeds of the Loans or any Letter of Credit: (i) to make any payments to any governmental official or employee, political party, official of a political party, candidate for political office, or anyone else acting in an official capacity, in order to obtain, retain or direct business or obtain any improper advantage, in violation of applicable Anti-Corruption Laws; (ii) to fund or facilitate dealings with a Sanctioned Person in violation of applicable Sanctions; (iii) in any other manner that would constitute or give rise to a violation any Sanctions by any party hereto, including any Lender; or (iv) for any purpose except for those permitted by Section 5.11 .

8.14 Activities of Senior Unsecured Notes Co-Issuer . The Co-Issuer shall not hold any material assets, become liable for any material obligations or engage in any significant business activities; provided that the Co-Issuer may issue Equity Interests to the Borrower if otherwise permitted hereunder and may be a co-obligor or guarantor with respect to Indebtedness, if otherwise permitted hereunder, if the Borrower is a primary obligor of such Indebtedness and the net proceeds of such Indebtedness are received by the Borrower or one or more of the Borrower’s Subsidiaries (other than the Co-Issuer), and may engage in activities related thereto or necessary in connection therewith.

ARTICLE IX

EVENTS OF DEFAULT AND REMEDIES

9.01 Events of Default . Any of the following shall constitute an “ Event of Default ”:

(a) the Borrower or any other Loan Party fails to pay any amount of principal on any Loan or any L/C Obligation or deposit any funds as Cash Collateral in respect of L/C Obligations on the date when due; or

(b) the Borrower or any other Loan Party fails to pay any interest on any Loan or L/C Obligation made hereunder, or any fees, or any portion thereof, within five Business Days after the date when due; or fails to pay any other fee or amount payable to the Lenders under any Loan Document, or any portion thereof, within five Business Days following written demand by the applicable Creditor Party entitled to such payment; or

(c) the Borrower or any other Loan Party fails to comply with the covenants contained in Section 6.01 (with respect to the Borrower or the Initial Landlord), Section 6.14 , Section 7.01(f) or Article VIII ; provided , that a Default by the Borrower under Section 8.11 (a “ Financial Covenant Event of Default ”) shall not constitute a Default with respect to any Facility (other than the Revolving Facility and the Term A Facility) unless and until the Required Revolving/Term A Lenders have terminated the Revolving Commitments and declared all amounts outstanding under the Revolving Facility and the Term A Facility to be due and payable; or

(d) the Borrower or any other Loan Party fails to perform or observe any other covenant or agreement (not specified in clause   (a) , (b)  or (c)  above) contained in any Loan

 

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Document on its part to be performed or observed within thirty days after notice thereof by the Administrative Agent to the Borrower; or

(e) any representation or warranty of a Loan Party made in any Loan Document shall prove to have been incorrect in any material respect (or in the case of any representation or warranty qualified by “Material Adverse Effect” or “materiality”, incorrect in any respect) when deemed made; or

(f) the Borrower or the Restricted Subsidiaries (i) fail to pay the principal, or any principal installment, of any present or future Indebtedness of (A) $75,000,000 or more in the case of Recourse Indebtedness (other than the Obligations) or (B) $250,000,000 or more in the case of Non-Recourse Indebtedness, on its part to be paid, when due (or within any stated grace period), whether at the stated maturity, upon acceleration, by failure to make any required prepayment or otherwise or (ii) fail to perform or observe any other term, covenant or agreement on its part to be performed or observed, or suffer any event or circumstance to occur, in connection with any present or future Indebtedness of (A) $75,000,000 or more in the case of Recourse Indebtedness (other than the Obligations) or (B) $250,000,000 or more in the case of Non-Recourse Indebtedness, if as a result of such failure or sufferance any holder or holders thereof (or an agent or trustee on its or their behalf) has the right to declare such Indebtedness due before the date on which it otherwise would become due or the right to require such Indebtedness to be redeemed, purchased, prepaid, defeased or otherwise become due (automatically or otherwise) or to require the Borrower or the Restricted Subsidiaries to make an offer to prepay, defease, redeem or purchase, all or any portion of such Indebtedness; or

(g) any Loan Document, at any time after its execution and delivery and for any reason other than (i) as expressly permitted hereunder, (ii) the agreement or action (or omission to act) of the Administrative Agent or any of the Lenders, or (iii) satisfaction of the Termination Conditions, ceases to be in full force and effect and, in the reasonable judgment of the Required Lenders, such circumstance is materially adverse to the interests of the Lenders, or is declared by a court of competent jurisdiction to be null and void, invalid or unenforceable in any respect which, in any such event in the reasonable opinion of the Required Lenders, is materially adverse to the interests of the Lenders, or the Borrower or the Restricted Subsidiaries denies in writing that it has any or further liability or obligation under any material provision of any Loan Document, or purports to revoke, terminate or rescind any material provision of any Loan Document; or

(h) a final judgment against the Borrower or any of its Material Subsidiaries is entered for the payment of money in excess of $75,000,000 (to the extent not paid, and not covered by either (x) independent third-party insurance as to which the insurer has been notified of such judgment or order and does not dispute coverage or (y) insurance provided by a captive insurance subsidiary to the extent permitted hereunder) and, absent procurement of a stay of execution, such judgment remains unsatisfied as of sixty calendar days after the date of entry of judgment and is not released, discharged, vacated or fully bonded within sixty calendar days after its issue or levy; or

(i) any Loan Party or any Material Subsidiary thereof institutes or consents to the institution of any proceeding under any Debtor Relief Law, or makes an assignment for the

 

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benefit of creditors; or applies for or consents to the appointment of any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer for it or for all or any material part of its property; or any receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar officer is appointed without the application or consent of such Person and the appointment continues undischarged or unstayed for 90 calendar days; or any proceeding under any Debtor Relief Law relating to any such Person or to a substantial part of its property constituting Collateral is instituted without the consent of such Person and continues undismissed or unstayed for 90 calendar days, or an order for relief is entered in any such proceeding; or

(j) an ERISA Event shall have occurred that, when taken together with all other ERISA Events, would reasonably be expected to result in a Material Adverse Effect; or

(k) other than in connection with any transaction not prohibited by Section 8.12 , the Initial Master Lease shall have terminated or the Initial Master Lease Guaranty shall have terminated other than in accordance with its terms or the terms of the Initial Master Lease or the Initial Master Lease Guaranty, as applicable; provided that such termination shall not constitute an Event of Default (and neither the Administrative Agent nor any Lender shall take any of the actions referred to in the following Section 9.02 ) if, within ninety (90) days of such termination, (x) the Borrower has entered into one or more Permitted Replacement Leases (or in the case of the Initial Master Lease Guaranty, a replacement guaranty is entered into in accordance with the Initial Master Lease), (y) in the case of a Permitted Replacement Lease, the Borrower shall be in compliance with the financial covenants set forth in Section 8.11 on a Pro Forma Basis (including after giving effect to such Permitted Replacement Leases (as if such Permitted Replacement Leases had been in effect for the most recent Test Period)), and (z) a Responsible Officer shall have delivered an officer’s certificate to the Administrative Agent certifying that, in the case of a Permitted Replacement Lease, such Permitted Replacement Lease is in effect (and attaching executed copies thereof) and that the Borrower is in compliance with the financial covenants set forth in Section 8.11 as of the last day of the Test Period immediately preceding the effectiveness of such Permitted Replacement Lease on a Pro Forma Basis (including after giving effect to such Permitted Replacement Lease (and, in the case of a replacement guaranty, such replacement guaranty is in effect, and attaching executed copies thereof)); or

(l) any Collateral Document after delivery thereof shall for any reason (other than (i) as expressly permitted hereunder, (ii) the agreement or action (or omission to act) of the Administrative Agent or any of the Secured Parties, (iii) the occurrence of the Termination Conditions, (iv) any such loss of perfection or priority results from the failure of the Administrative Agent or any Secured Party to take any action within its control, (v) such loss is covered by a lender’s title insurance policy as to which the insurer has been notified of such loss and does not deny coverage or (vi) such loss of perfected security interest may be remedied by the filing of appropriate documentation without the loss of priority) ceases to create a valid and perfected First Priority Lien on the Collateral purported to be covered thereby with respect to any material portion of the Collateral and such cessation shall continue for a period of 10 consecutive calendar days; or

(m) a Change of Control occurs.

 

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9.02 Remedies upon Event of Default . If any Event of Default occurs and is continuing, the Administrative Agent shall at the request of the Required Lenders (or, if a Financial Covenant Event of Default occurs and is continuing, at the request of, or with the consent of, the Required Revolving/Term A Lenders only, and in such case, without limiting Section   9.01(d) , only with respect to the Revolving Facility and any Letters of Credit, L/C Credit Extensions, L/C Obligations and the Term A Facility), take any or all of the following actions:

(a) declare the commitment of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions to be terminated, whereupon such commitments and obligation shall be terminated;

(b) declare the unpaid principal amount of all outstanding Loans, all interest accrued and unpaid thereon, and all other amounts owing or payable hereunder or under any other Loan Document to be immediately due and payable, without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived by each Borrower;

(c) require that the Borrower Cash Collateralize the L/C Obligations in an amount equal to the Minimum Collateral Amount; and

(d) exercise on behalf of itself, the Lenders and the L/C Issuers all rights and remedies available to it, the Lenders and the L/C Issuers under the Loan Documents or applicable Law;

provided , that upon the occurrence of an actual or deemed entry of an order for relief with respect to the Borrower under the Bankruptcy Code of the United States, the obligation of each Lender to make Loans and any obligation of each L/C Issuer to make L/C Credit Extensions shall automatically terminate, the unpaid principal amount of all outstanding Loans and all interest and other amounts as aforesaid shall automatically become due and payable, and the obligation of the Borrower to Cash Collateralize the L/C Obligations as aforesaid shall automatically become effective, in each case without further act of the Administrative Agent or any Lender.

9.03 Application of Funds . After the exercise of remedies provided for in Section   9.02 (or after the Loans have automatically become immediately due and payable and the L/C Obligations have automatically been required to be Cash Collateralized as set forth in the proviso to Section   9.02 ), any amounts received on account of the Obligations shall be applied by the Administrative Agent in the following order:

First , to payment of that portion of the Obligations constituting fees, indemnities, expenses and other amounts (other than principal, interest and Letter of Credit Fees, but including fees, charges and disbursements of counsel to the Administrative Agent and amounts payable under Article   III ) payable to the Administrative Agent in its capacity as such;

Second , to payment of that portion of the Obligations constituting fees, indemnities and other amounts (other than principal, interest and Letter of Credit Fees) payable to the Lenders and the L/C Issuers (including fees, charges and disbursements of counsel to the respective Lenders and the L/C Issuers (including fees and time charges for attorneys who may be employees of any Lender or any L/C Issuer)) arising under the Loan Documents and amounts

 

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payable under Article   III , ratably among them in proportion to the respective amounts described in this clause  Second payable to them;

Third , to payment of that portion of the Obligations constituting accrued and unpaid Letter of Credit Fees and interest on the Loans, L/C Borrowings and other Obligations arising under the Loan Documents, ratably among the Lenders and the L/C Issuers in proportion to the respective amounts described in this clause  Third payable to them;

Fourth , to payment of that portion of the Obligations constituting unpaid principal of the Loans, L/C Borrowings and Obligations then owing under Secured Hedge Agreements and Secured Cash Management Agreements, ratably among the Lenders, the L/C Issuers, the Hedge Banks and the Cash Management Banks in proportion to the respective amounts described in this clause  Fourth held by them;

Fifth , to the Administrative Agent for the account of the L/C Issuers, to Cash Collateralize that portion of L/C Obligations comprised of the aggregate undrawn amount of Letters of Credit; and

Last , the balance, if any, after all of the Obligations have been paid in full, to the Borrower or as otherwise required by Law.

Subject to Section   2.03(c) , amounts used to Cash Collateralize the aggregate undrawn amount of Letters of Credit pursuant to clause  Fifth above shall be applied to satisfy drawings under such Letters of Credit as they occur.

Notwithstanding the foregoing, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements shall be excluded from the application described above if the Administrative Agent has not received written notice thereof, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be. Each Cash Management Bank or Hedge Bank not a party to this Agreement that has given the notice contemplated by the preceding sentence shall, by such notice, be deemed to have acknowledged and accepted the appointment of the Administrative Agent pursuant to the terms of Article   X hereof for itself and its Affiliates as if a “Lender” party hereto.

ARTICLE X

ADMINISTRATIVE AGENT

10.01 Appointment and Authority .

(a) Each of the Lenders and the L/C Issuers hereby irrevocably appoints Bank of America to act on its behalf as the Administrative Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent by the terms hereof or thereof, together with such actions and powers as are reasonably incidental thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the Lenders and the L/C Issuers, and the Borrower shall not have any rights as a third party beneficiary of any of such provisions. It is understood and agreed that the use of the term “agent” herein or in any other

 

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Loan Documents (or any other similar term) with reference to the Administrative Agent is not intended to connote any fiduciary or other implied (or express) obligations arising under agency doctrine of any applicable Law. Instead such term is used as a matter of market custom, and is intended to create or reflect only an administrative relationship between contracting parties.

(b) The Administrative Agent shall also act as the “ collateral agent ” under the Loan Documents, and each of the Lenders (including in its capacities as a potential Hedge Bank and a potential Cash Management Bank) and the L/C Issuers hereby irrevocably appoints and authorizes the Administrative Agent to act as the agent of such Lender and such L/C Issuer for purposes of acquiring, holding and enforcing any and all Liens on Collateral granted by any of the Loan Parties to secure any of the Obligations, together with such powers and discretion as are reasonably incidental thereto. In this connection, the Administrative Agent, as “collateral agent” and any co-agents, sub-agents and attorneys-in-fact appointed by the Administrative Agent pursuant to Section   10.05 for purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under the Collateral Documents, or for exercising any rights and remedies thereunder at the direction of the Administrative Agent, shall be entitled to the benefits of all provisions of this Article   X and Article   XI (including Section   11.04(c) , as though such co-agents, sub-agents and attorneys-in-fact were the “collateral agent” under the Loan Documents) as if set forth in full herein with respect thereto.

10.02 Rights as a Lender . The Person serving as the Administrative Agent hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and may exercise the same as though it were not the Administrative Agent and the term “Lender” or “Lenders” shall, unless otherwise expressly indicated or unless the context otherwise requires, include the Person serving as the Administrative Agent hereunder in its individual capacity. Such Person and its Affiliates may accept deposits from, lend money to, own securities of, act as the financial advisor or in any other advisory capacity for and generally engage in any kind of business with the Borrower or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent hereunder and without any duty to account therefor to the Lenders.

10.03 Exculpatory Provisions . The Administrative Agent shall not have any duties or obligations except those expressly set forth herein and in the other Loan Documents, and its duties hereunder shall be administrative in nature. Without limiting the generality of the foregoing, the Administrative Agent:

(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a Default or an Event of Default has occurred and is continuing;

(b) shall not have any duty to take any discretionary action or exercise any discretionary powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan Documents that the Administrative Agent is required to exercise as directed in writing by the Required Lenders (or such other number or percentage of the Lenders as shall be expressly provided for herein or in the other Loan Documents); provided that the Administrative Agent shall not be required to take any action that, in its opinion or the opinion of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan Document or applicable law, including for the avoidance of doubt any action that may be in violation of the

 

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automatic stay under any Debtor Relief Law or that may effect a forfeiture, modification or termination of property of a Defaulting Lender in violation of any Debtor Relief Law;

(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any duty to disclose, and shall not be liable for the failure to disclose, any information relating to the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as the Administrative Agent or any of its Affiliates in any capacity;

(d) shall not be liable for any action taken or not taken by it (i) with the consent or at the request of the Required Lenders (or such other number or percentage of the Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be necessary, under the circumstances as provided in Sections   10.01 and 10.02 ) or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court of competent jurisdiction by final and nonappealable judgment. The Administrative Agent shall be deemed not to have knowledge of any Default or Event of Default unless and until notice describing such Default or Event of Default is given to the Administrative Agent by the Borrower, a Lender or an L/C Issuer;

(e) shall not be responsible for or have any duty to ascertain or inquire into (i) any statement, warranty or representation made in or in connection with this Agreement or any other Loan Document, (ii) the contents of any certificate, report or other document delivered hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance of any of the covenants, agreements or other terms or conditions set forth herein or therein or the occurrence of any Default or Event of Default, (iv) the validity, enforceability, effectiveness or genuineness of this Agreement, any other Loan Document or any other agreement, instrument or document, or the creation, perfection or priority of any Lien purported to be created by the Collateral Documents, (v) the value or the sufficiency of any Collateral, or (vi) the satisfaction of any condition set forth in Article   IV or elsewhere herein, other than to confirm receipt of items expressly required to be delivered to the Administrative Agent; and

(f) shall not be responsible or have any liability for, or have any duty to ascertain, inquire into, monitor or enforce, compliance with the provisions of this Agreement relating to Disqualified Lenders. Without limiting the generality of the foregoing, the Administrative Agent shall not (x) be obligated to ascertain, monitor or inquire as to whether any Lender or Participant or prospective Lender or Participant is a Disqualified Lender or (y) have any liability with respect to or arising out of any assignment or participation of Loans, or disclosure of confidential information, to any Disqualified Lender.

10.04 Reliance by Administrative Agent . The Administrative Agent shall be entitled to rely upon, and shall not incur any liability for relying upon, any notice, request, certificate, consent, statement, instrument, document or other writing (including any electronic message, Internet or intranet website posting or other distribution) believed by it to be genuine and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative Agent also may rely upon any statement made to it orally or by telephone and believed by it to have been made by the proper Person, and shall not incur any liability for relying thereon. In determining compliance with any condition hereunder to the making of a Loan, or the issuance, extension, renewal or increase of a Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or an L/C Issuer, the Administrative Agent may presume that such

 

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condition is satisfactory to such Lender or such L/C Issuer unless the Administrative Agent shall have received notice to the contrary from such Lender or such L/C Issuer prior to the making of such Loan or the issuance of such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel for the Borrower), independent accountants and other experts selected by it, and shall not be liable for any action taken or not taken by it in accordance with the advice of any such counsel, accountants or experts.

10.05 Delegation of Duties . The Administrative Agent may perform any and all of its duties and exercise its rights and powers hereunder or under any other Loan Document by or through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent and any such sub-agent may perform any and all of its duties and exercise its rights and powers by or through their respective Related Parties. The exculpatory provisions of this Article shall apply to any such sub-agent and to the Related Parties of the Administrative Agent and any such sub-agent, and shall apply to their respective activities in connection with the syndication of the credit facilities provided for herein as well as activities as Administrative Agent. The Administrative Agent shall not be responsible for the negligence or misconduct of any sub-agents except to the extent that a court of competent jurisdiction determines in a final and nonappealable judgment that the Administrative Agent acted with gross negligence or willful misconduct in the selection of such sub-agents.

10.06 Resignation of Administrative Agent or L/C Issuer .

(a) The Administrative Agent may at any time give notice of its resignation to the Lenders, the L/C Issuers and the Borrower. Upon receipt of any such notice of resignation, the Required Lenders shall have the right to appoint a successor; provided that, if no Event of Default shall have occurred and be continuing, then the successor agent shall be subject to the consent of the Borrower (which consent of the Borrower shall not be unreasonably withheld or delayed; provided that in no event shall a Disqualified Lender be the successor Administrative Agent). If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days after the retiring Administrative Agent gives notice of its resignation (or such earlier day as shall be agreed by the Required Lenders) (the “ Resignation Effective Date ”), then the retiring Administrative Agent may (but shall not be obligated to) on behalf of the Lenders and the L/C Issuers, appoint a successor Administrative Agent meeting the qualifications set forth above. Whether or not a successor has been appointed, such resignation shall become effective in accordance with such notice on the Resignation Effective Date.

(b) If the Person serving as Administrative Agent is a Defaulting Lender pursuant to clause (c) of the definition thereof, the Required Lenders may, to the extent permitted by applicable Law, by notice in writing to the Borrower and such Person remove such Person as Administrative Agent and, in consultation with the Borrower, appoint a successor; provided that, if no Event of Default shall have occurred and be continuing, then the successor agent shall be subject to the consent of the Borrower (which consent of the Borrower shall not be unreasonably withheld or delayed). If no such successor shall have been so appointed by the Required Lenders and shall have accepted such appointment within 30 days (or such earlier day as shall be agreed by the Required Lenders) (the “ Removal Effective Date ”), then such removal shall nonetheless become effective in accordance with such notice on the Removal Effective Date.

 

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(c) With effect from the Resignation Effective Date or the Removal Effective Date, as applicable, (1) the retiring or removed Administrative Agent shall be discharged from its duties and obligations hereunder and under the other Loan Documents (except that in the case of any collateral security held by, or in the name of, the Administrative Agent on behalf of the Lenders or any L/C Issuer under any of the Loan Documents, the retiring or removed Administrative Agent shall continue to hold such collateral security until such time as a successor Administrative Agent is appointed) and (2) except for any indemnity payments or other amounts then owed to the retiring or removed Administrative Agent, all payments, communications and determinations provided to be made by, to or through the Administrative Agent shall instead be made by or to each Lender and each L/C Issuer directly, until such time as the Required Lenders appoint a successor Administrative Agent as provided for above in this Section 10.06 . Upon the acceptance of a successor’s appointment as Administrative Agent hereunder, such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring (or retired) or removed Administrative Agent (other than as provided in Section 3.01(h) and other than any rights to indemnity payments or other amounts owed to the retiring or removed Administrative Agent as of the Resignation Effective Date or the Removal Effective Date, as applicable), and the retiring or removed Administrative Agent shall be discharged from all of its duties and obligations hereunder or under the other Loan Documents (if not already discharged therefrom as provided above in this Section 10.06 ). The fees payable by the Borrower to a successor Administrative Agent shall be the same as those payable to its predecessor unless otherwise agreed between the Borrower and such successor. After the retiring or removed Administrative Agent’s resignation or removal hereunder and under the other Loan Documents, the provisions of this Article and Section   11.04 shall continue in effect for the benefit of such retiring or removed Administrative Agent, its sub-agents and their respective Related Parties in respect of any actions taken or omitted to be taken by any of them while the retiring or removed Administrative Agent was acting as Administrative Agent.

(d) Any resignation by Bank of America as Administrative Agent pursuant to this Section   10.06 shall also constitute its resignation as an L/C Issuer. If Bank of America or any other L/C Issuer resigns as an L/C Issuer, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto, including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant to Section 2.03(c) . Upon the appointment by the Borrower of a successor L/C Issuer hereunder (which successor shall in all cases be a Lender other than a Defaulting Lender) and acceptance by such successor of such appointment, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of such retiring L/C Issuer, (ii) such retiring L/C Issuer shall be discharged from all of their respective duties and obligations hereunder or under the other Loan Documents, and (iii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to such retiring L/C Issuer to effectively assume the obligations of such retiring L/C Issuer with respect to such Letters of Credit.

10.07 Non-Reliance on Administrative Agent, Other Lenders and Arrangers . Each Lender and each L/C Issuer acknowledges that it has, independently and without reliance upon the Administrative Agent, any other Lender, any Arranger or any of their Related Parties and

 

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based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Agreement. Each Lender and each L/C Issuer also acknowledges that it will, independently and without reliance upon the Administrative Agent, any other Lender, any Arranger or any of their Related Parties and based on such documents and information as it shall from time to time deem appropriate, continue to make its own decisions in taking or not taking action under or based upon this Agreement, any other Loan Document or any related agreement or any document furnished hereunder or thereunder.

10.08 No Other Duties, Etc . Anything herein to the contrary notwithstanding, none of the Arrangers are parties to this Agreement or any of the other Loan Documents or have any powers, duties or responsibilities under this Agreement or any of the other Loan Documents in their capacity as such, except in its capacity, as applicable, as the Administrative Agent, a Lender or an L/C Issuer hereunder.

10.09 Administrative Agent May File Proofs of Claim . In case of the pendency of any proceeding under any Debtor Relief Law or any other judicial proceeding relative to any Loan Party, the Administrative Agent (irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable as herein expressed or by declaration or otherwise and irrespective of whether the Administrative Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention in such proceeding or otherwise:

(a) to file and prove a claim for the whole amount of the principal and interest owing and unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid and to file such other documents as may be necessary or advisable in order to have the claims of the Lenders, the L/C Issuers and the Administrative Agent (including any claim for the reasonable compensation, expenses, disbursements and advances of the Lenders, the L/C Issuers and the Administrative Agent and their respective agents and counsel and all other amounts due the Lenders, the L/C Issuers and the Administrative Agent under Sections   2.03 , 2.08 and 11.04 ) allowed in such judicial proceeding; and

(b) to collect and receive any monies or other property payable or deliverable on any such claims and to distribute the same;

and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official in any such judicial proceeding is hereby authorized by each Lender and each L/C Issuer to make such payments to the Administrative Agent and, if the Administrative Agent shall consent to the making of such payments directly to the Lenders and the L/C Issuers, to pay to the Administrative Agent any amount due for the reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its agents and counsel, and any other amounts due the Administrative Agent under Sections   2.08 and 11.04 .

Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or consent to or accept or adopt on behalf of any Lender or any L/C Issuer any plan of reorganization, arrangement, adjustment or composition affecting the Obligations or the rights of any Lender or any L/C Issuer to authorize the Administrative Agent to vote in respect of the claim of any Lender or any L/C Issuer or in any such proceeding.

 

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The Secured Parties hereby irrevocably authorize the Administrative Agent, at the direction of the Required Lenders, to credit bid all or any portion of the Obligations (including accepting some or all of the Collateral in satisfaction of some or all of the Obligations pursuant to a deed in lieu of foreclosure or otherwise) and in such manner purchase (either directly or through one or more acquisition vehicles) all or any portion of the Collateral (a) at any sale thereof conducted under the provisions of the Bankruptcy Code of the United States, including under Sections 363, 1123 or 1129 of the Bankruptcy Code of the United States, or any similar Laws in any other jurisdictions to which a Loan Party is subject, (b) at any other sale or foreclosure or acceptance of collateral in lieu of debt conducted by (or with the consent or at the direction of) the Administrative Agent (whether by judicial action or otherwise) in accordance with any applicable Law. In connection with any such credit bid and purchase, the Obligations owed to the Secured Parties shall be entitled to be, and shall be, credit bid on a ratable basis (with Obligations with respect to contingent or unliquidated claims receiving contingent interests in the acquired assets on a ratable basis that would vest upon the liquidation of such claims in an amount proportional to the liquidated portion of the contingent claim amount used in allocating the contingent interests) in the asset or assets so purchased (or in the Equity Interests or debt instruments of the acquisition vehicle or vehicles that are used to consummate such purchase). In connection with any such bid (i) the Administrative Agent shall be authorized to form one or more acquisition vehicles to make a bid, (ii) to adopt documents providing for the governance of the acquisition vehicle or vehicles ( provided that any actions by the Administrative Agent with respect to such acquisition vehicle or vehicles, including any disposition of the assets or Equity Interests thereof shall be governed, directly or indirectly, by the vote of the Required Lenders, irrespective of the termination of this Agreement and without giving effect to the limitations on actions by the Required Lenders contained in clauses (a) through (m) of Section 11.01 of this Agreement), (iii) the Administrative Agent shall be authorized to assign the relevant Obligations to any such acquisition vehicle pro rata by the Lenders, as a result of which each of the Lenders shall be deemed to have received a pro rata portion of any Equity Interests and/or debt instruments issued by such an acquisition vehicle on account of the assignment of the Obligations to be credit bid, all without the need for any Secured Party or acquisition vehicle to take any further action and (iv) to the extent that Obligations that are assigned to an acquisition vehicle are not used to acquire Collateral for any reason (as a result of another bid being higher or better, because the amount of Obligations assigned to the acquisition vehicle exceeds the amount of debt credit bid by the acquisition vehicle or otherwise), such Obligations shall automatically be reassigned to the Lenders pro rata and the Equity Interests and/or debt instruments issued by any acquisition vehicle on account of the Obligations that had been assigned to the acquisition vehicle shall automatically be cancelled, without the need for any Secured Party or any acquisition vehicle to take any further action.

10.10 Collateral and Guaranty Matters . Each of the Lenders (including in its capacities as a potential Cash Management Bank and a potential Hedge Bank) and the L/C Issuers irrevocably authorize the Administrative Agent:

(a) to release any Lien on any property granted to or held by the Administrative Agent under any Loan Document (i) upon satisfaction of the Termination Conditions and payment in full of all Obligations under the Secured Cash Management Agreements and Secured Hedge Agreements, (ii) that is sold, disposed of or transferred or to be sold, disposed of or transferred as part of or in connection with any sale, disposition or transfer permitted

 

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hereunder or under any other Loan Document to a Person that is not a Loan Party, (iii) if the property subject to such Lien is owned by a Guarantor, upon the release of such Guarantor from its Guaranty otherwise in accordance with the Loan Documents, (iv) that constitutes Excluded Assets or (v) if approved, authorized or ratified in writing in accordance with Section   11.01 ;

(b) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary or a Restricted Subsidiary as a result of a transaction permitted hereunder;

(c) to release any Guarantor from its obligations under the Guaranty if such Person ceases to be a Subsidiary that is a Material Subsidiary (except for a Guarantor that is an Immaterial Subsidiary that is a guarantor of any Material Indebtedness of the Borrower or the Restricted Subsidiaries);

(d) to subordinate any Lien on any property granted or held by the Administrative Agent under any Loan Document to the holder of any Lien on such property that is permitted by Section 8.04(d) and clauses (d), (e), (f), (j), (k), (z), (dd), (ee) and (ff) (so long as in the case of clause (ff), the related lender has entered into a customary non-disturbance agreement with respect to such Eligible Ground Lease) of the definition of “Permitted Encumbrances”;

(e) to enter into subordination, intercreditor and/or similar agreements with respect to Indebtedness that is (i) required or permitted to be subordinated hereunder and/or (ii) secured by Liens, and which Indebtedness contemplates an intercreditor, subordination or collateral trust agreement;

(f) to execute and deliver customary subordination, non-disturbance and attornment agreements to tenants, subtenants, other occupants and licensees on Mortgaged Real Property.

The Administrative Agent hereby agrees to use its commercially reasonable efforts to take any of the foregoing actions requested by the Borrower to facilitate any transaction permitted hereunder within ten Business Days following request by the Borrower (or such shorter period of time as Administrative Agent may agree to in its reasonable discretion), in a form reasonably requested by the Borrower.

In each case as specified in this Section   10.10 , the Administrative Agent will, at the Borrower’s expense, execute and deliver to the applicable Loan Party such documents as such Loan Party may reasonably request to evidence the release of such item of Collateral from the assignment and security interest granted under the Collateral Documents or to subordinate its interest in such item, or to release such Guarantor from its obligations under the Guaranty, in each case in accordance with the terms of the Loan Documents and this Section   10.10 .

Notwithstanding anything herein to the contrary, the Borrower and its Restricted Subsidiaries may execute such maps, plats, records of survey, amendments to deed of trust and any other documentation as is necessary to give effect to any lot line adjustment or recording of a subdivision map to create a separate legal parcel, and the Administrative Agent will cooperate with and consent to the execution of such maps, plats, records of survey, amendments to deed of

 

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trust and other documentation by the Borrower and its Restricted Subsidiaries as is necessary to reflect the revised legal description for such land.

10.11 Secured Cash Management Agreements and Secured Hedge Agreements . Except as otherwise expressly set forth herein or in any Guaranty or any Collateral Document, no Cash Management Bank or Hedge Bank that obtains the benefits of Section   9.03 , any Guaranty or any Collateral by virtue of the provisions hereof or of any Guaranty or any Collateral Document shall have any right to notice of any action or to consent to, direct or object to any action hereunder or under any other Loan Document or otherwise in respect of the Collateral (including the release or impairment of any Collateral) other than in its capacity as a Lender and, in such case, only to the extent expressly provided in the Loan Documents. Notwithstanding any other provision of this Article   X to the contrary, the Administrative Agent shall not be required to verify the payment of, or that other satisfactory arrangements have been made with respect to, Obligations arising under Secured Cash Management Agreements and Secured Hedge Agreements unless the Administrative Agent has received written notice of such Obligations, together with such supporting documentation as the Administrative Agent may request, from the applicable Cash Management Bank or Hedge Bank, as the case may be.

ARTICLE XI

MISCELLANEOUS

11.01 Amendments, Etc . No amendment or waiver of any provision of this Agreement or any other Loan Document, and no consent to any departure by any Loan Party therefrom, shall be effective unless in writing signed by the Required Lenders (other than with respect to any amendment or waiver contemplated in clauses   (a) and (m) below) and the applicable Loan Party, as the case may be, and acknowledged by the Administrative Agent, and each such waiver or consent shall be effective only in the specific instance and for the specific purpose for which given; provided , that no such amendment, waiver or consent shall:

(a) (i) amend or otherwise modify Section 8.11 (or for the purposes of determining whether the Borrower is in compliance with Section 8.11 , any defined term used therein), (ii) waive or consent to any Default or Event of Default resulting from a breach of Section 8.11 or (iii) alter the rights or remedies of the Required Revolving/Term A Lenders arising pursuant to Article IX as a result of a breach of Section 8.11 , without the written consent of the Required Revolving/Term A Lenders; provided , that (A) notwithstanding the foregoing and for the avoidance of doubt, the amendments, modifications, waivers and consents described in this clause   (a) shall not require the consent of any Lenders other than the Required Revolving/Term A Lenders and (B) for the avoidance of doubt, any amendment or other modification of Section 8.11 (or any defined term used therein) for the purpose of amending, modifying or waiving any requirement for Pro Forma Compliance or compliance on a Pro Forma Basis with any covenant set forth in Section 8.11 shall require the consent of the Required Lenders;

(b) extend or increase the Commitment of any Lender (or reinstate any Commitment terminated pursuant to Section   9.02 ) without the written consent of such Lender;

(c) postpone any date fixed by this Agreement or any other Loan Document for any payment (excluding mandatory prepayments) of principal, interest, fees or other amounts due

 

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to a Lender under any Loan Document without the written consent of the Lender entitled to such payment;

(d) reduce the principal of, or the rate of interest specified herein on, any Loan or L/C Borrowing, or (subject to clause   (iii) of the second proviso to this Section   11.01 ) any fees or other amounts payable hereunder or under any other Loan Document, or change the manner of computation of any financial ratio (including any change in any applicable defined term) used in determining the Applicable Rate or Applicable Fee Rate that would result in a reduction of any interest rate on any Loan or any fee payable hereunder without the written consent of each Lender entitled to such amount; provided , that only the consent of the Required Lenders shall be necessary to amend the definition of “Default Rate” or to waive any obligation of the Borrower to pay interest or Letter of Credit Fees at the Default Rate;

(e) change (x)  Section   9.03 in a manner that would alter the pro rata sharing of payments required thereby without the written consent of each Lender or (y) the order of application of any reduction in the Commitments or any prepayment of Loans among the Facilities from the application thereof set forth in the applicable provisions of Section   2.04(b) or 2.05(b) , respectively, in any manner that materially and adversely affects the Lenders under a Facility without the written consent of the Required Facility Lenders for such Facility;

(f) change (i) definition of “Required Lenders” or any other provision hereof specifying the number or percentage of Lenders required to amend, waive or otherwise modify any rights hereunder or make any determination or grant any consent hereunder (other than the definitions specified in clause   (ii) of this Section   11.01(f) ), without the written consent of each Lender or (ii) the definition of “Required Revolving Lenders,” without the written consent of each Revolving Lender or (iii) the definition of “Required Revolving/Term A Lenders,” without the written consent of each Revolving Lender and each Term A Lender or (iv) the definition of “Required Facility Lenders,” without the written consent of each Lender directly and adversely affected thereby;

(g) release all or substantially all of the Collateral in any transaction or series of related transactions, without the written consent of each Lender;

(h) release all or substantially all of the value of the Guaranty, without the written consent of each Lender, except to the extent the release of any Subsidiary from the Guaranty is permitted pursuant to Section   10.10 (in which case such release may be made by the Administrative Agent acting alone, and shall be made promptly upon the request of the Borrower);

(i) impose any greater restriction on the ability of any Lender under a Facility to assign any of its rights or obligations hereunder without the written consent of the Required Facility Lenders for such Facility;

(j) waive any condition set forth in Section 4.01 , or, in the case of the initial Credit Extension, Section   4.02 , without the written consent of each Lender directly and adversely affected thereby;

 

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(k) change any provision of this Section 11.01 without the written consent of each Lender directly and adversely affected thereby;

(l) change any provision of Section 2.19 without the written consent of each Revolving Lender; or

(m) amend, modify or waive any condition set forth in Section 4.02 with respect to the making of any Revolving Loans after the Closing Date without the written consent of the Required Revolving Lenders (such consent being in lieu of the consent of the Required Lenders or any other group of Lenders);

and provided , further , that (i) no amendment, waiver or consent shall, unless in writing and signed by any L/C Issuer in addition to the Lenders required above, affect the rights or duties of such L/C Issuer under this Agreement or any Issuer Document relating to any Letter of Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing and signed by the Administrative Agent in addition to the Lenders required above, affect the rights or duties of the Administrative Agent under this Agreement or any other Loan Document; (iii) any Fee Letter may be amended, or rights or privileges thereunder waived, in a writing executed only by the parties thereto, (iv) the Administrative Agent may, with the consent of the Borrower only, amend, modify or supplement this Agreement or any other Loan Document to cure any ambiguity, omission, defect or inconsistency (as reasonably determined by the Administrative Agent), so long as such amendment, modification or supplement does not adversely affect the rights of any Lender (or any L/C Issuer, if applicable) or the Lenders shall have received at least five Business Days’ prior written notice thereof and Administrative Agent shall not have received, within five Business Days of the date of such notice to the Lenders, a written notice from the Required Lenders stating that the Required Lenders object to such amendment and (v) the Administrative Agent and the Borrower shall be permitted to amend any provision of any Collateral Document to better implement the intentions of this Agreement and the other Loan Documents and to add Collateral. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have any right to approve or disapprove any amendment, waiver or consent hereunder (and any amendment, waiver or consent which by its terms requires the consent of all Lenders or each affected Lender may be effected with the consent of the applicable Lenders other than Defaulting Lenders), except that (x) the Commitment of such Lender may not be increased or extended and the principal amount of any Loan, and the rate or amount of interest and fees on any Loan of such Lender may not be decreased without the consent of such Lender and (y) any waiver, amendment or modification requiring the consent of all Lenders or each affected Lender that by its terms affects any Defaulting Lender disproportionately adversely relative to other affected Lenders shall require the consent of such Defaulting Lender.

If any Lender does not consent to a proposed amendment, waiver, consent or release with respect to any Loan Document that requires the consent of each Lender or each adversely affected Lender (or each Lender or each adversely affected Lender of a particular Class) and that has been approved by the Required Lenders (or the Required Facility Lenders with respect to the applicable Class, as the case may be), the Borrower may replace such non-consenting Lender in accordance with Section   11.13 ; provided that such amendment, waiver, consent or release can be effected as a result of the assignment contemplated by such Section (together with all other such assignments required by the Borrower to be made pursuant to this paragraph).

 

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The Administrative Agent and the Borrower may (without the consent of Lenders) (1) enter into Incremental Joinder Agreements, Refinancing Amendments and Extension Amendments and (2) otherwise amend any Loan Document to the extent (but only to the extent) necessary to reflect the existence and terms of Incremental Term Loans, Other Term Loans, Extended Term Loans, Incremental Revolving Commitments, Other Revolving Commitments and Extended Revolving Commitments (including as may be necessary in order to establish new tranches or sub-tranches in respect of the Loans and/or Commitments and to make such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrower in connection therewith), in each case, incurred or extended pursuant to Sections 2.13 , 2.14 or 2.15 , as applicable. Notwithstanding anything to the contrary contained herein, any such amendment shall become effective without any further consent of any other party to such Loan Document.

Notwithstanding any provision herein to the contrary, this Agreement may be amended with the written consent of the Required Lenders, the Administrative Agent and the Borrower (1) to add one or more additional revolving credit or term loan facilities to this Agreement and to permit the extensions of credit and all related obligations and liabilities arising in connection therewith from time to time outstanding to share ratably (or on a basis subordinated to the existing facilities hereunder) in the benefits of this Agreement and the other Loan Documents with the obligations and liabilities from time to time outstanding in respect of the existing facilities hereunder, and (ii) in connection with the foregoing, to permit, as deemed appropriate by the Administrative Agent and approved by the Required Lenders, the Lenders providing such additional credit facilities to participate in any required vote or action required to be approved by the Required Lenders or by any other number, percentage or class of Lenders hereunder.

11.02 Notices; Effectiveness; Electronic Communications .

(a) Notices Generally . Except in the case of notices and other communications expressly permitted to be given by telephone (and except as provided in clause   (b) below), all notices and other communications provided for herein shall be in writing and shall be delivered by hand or overnight courier service, mailed by certified or registered mail or sent by facsimile as follows, and all notices and other communications expressly permitted hereunder to be given by telephone shall be made to the applicable telephone number, as follows:

(i) if to the Borrower, the Administrative Agent or any L/C Issuer, to the address, facsimile number, electronic mail address or telephone number specified for such Person on Schedule   11.02 ; and

(ii) if to any other Lender, to the address, facsimile number, electronic mail address or telephone number specified in its Administrative Questionnaire (including, as appropriate, notices delivered solely to the Person designated by a Lender on its Administrative Questionnaire then in effect for the delivery of notices that may contain material non-public information relating to the Borrower).

Notices and other communications sent by hand or overnight courier service, or mailed by certified or registered mail, shall be deemed to have been given when received; notices and other

 

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communications sent by facsimile shall be deemed to have been given when sent (except that, if not given during normal business hours for the recipient, shall be deemed to have been given at the opening of business on the next Business Day for the recipient). Notices and other communications delivered through electronic communications to the extent provided in clause   (b) below shall be effective as provided in such clause   (b) .

(b) Electronic Communications . Notices and other communications to the Lenders and the L/C Issuers hereunder may be delivered or furnished by electronic communication (including e-mail and Internet or intranet websites) pursuant to procedures approved by the Administrative Agent, provided that the foregoing shall not apply to notices to any Lender or any L/C Issuer pursuant to Article   II if such Lender or such L/C Issuer, as applicable, has notified the Administrative Agent that it is incapable of receiving notices under such Article by electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to accept notices and other communications to it hereunder by electronic communications pursuant to procedures approved by it, provided that approval of such procedures may be limited to particular notices or communications.

Unless the Administrative Agent otherwise prescribes, (i) notices and other communications sent to an e-mail address shall be deemed received upon the sender’s receipt of an acknowledgement from the intended recipient (such as by the “return receipt requested” function, as available, return e-mail or other written acknowledgement), and (ii) notices or communications posted to an Internet or intranet website shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as described in the foregoing clause   (i) of notification that such notice or communication is available and identifying the website address therefor; provided that, for both clauses (i) and (ii), if such notice, email or other communication is not sent during the normal business hours of the recipient, such notice, email or communication shall be deemed to have been sent at the opening of business on the next Business Day for the recipient.

(c) The Platform . THE PLATFORM IS PROVIDED “AS IS” AND “AS AVAILABLE.” THE AGENT PARTIES (AS DEFINED BELOW) DO NOT WARRANT THE ACCURACY OR COMPLETENESS OF THE BORROWER MATERIALS OR THE ADEQUACY OF THE PLATFORM, AND EXPRESSLY DISCLAIM LIABILITY FOR ERRORS IN OR OMISSIONS FROM THE BORROWER MATERIALS. NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS OR FREEDOM FROM VIRUSES OR OTHER CODE DEFECTS, IS MADE BY ANY AGENT PARTY IN CONNECTION WITH THE BORROWER MATERIALS OR THE PLATFORM.

(d) Change of Address, Etc . Each of the Borrower, the Administrative Agent and any L/C Issuer may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the other parties hereto. Each other Lender may change its address, facsimile or telephone number for notices and other communications hereunder by notice to the Borrower, the Administrative Agent and any L/C Issuer. In addition, each Lender agrees to notify the Administrative Agent from time to time to ensure that the Administrative Agent has on record (i) an effective address, contact name, telephone

 

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number, facsimile number and electronic mail address to which notices and other communications may be sent and (ii) accurate wire instructions for such Lender. Furthermore, each Public Lender agrees to cause at least one individual at or on behalf of such Public Lender to at all times have selected the “Private Side Information” or similar designation on the content declaration screen of the Platform in order to enable such Public Lender or its delegate, in accordance with such Public Lender’s compliance procedures and applicable Law, including United States Federal and state securities Laws, to make reference to Borrower Materials that are not made available through the “Public Side Information” portion of the Platform and that may contain material non-public information with respect to the Borrower or its securities for purposes of United States Federal or state securities laws.

(e) Reliance by Administrative Agent, L/C Issuer and Lenders . The Administrative Agent, the L/C Issuers and the Lenders shall be entitled to rely and act upon any notices (including telephonic or electronic Committed Loan Notices and Letter of Credit Applications) purportedly given by or on behalf of the Borrower even if (i) such notices were not made in a manner specified herein, were incomplete or were not preceded or followed by any other form of notice specified herein, or (ii) the terms thereof, as understood by the recipient, varied from any confirmation thereof. The Borrower shall indemnify the Administrative Agent, each L/C Issuer, each Lender and the Related Parties of each of them from all losses, costs, expenses and liabilities resulting from the reliance by such Person on each notice purportedly given by or on behalf of the Borrower. All telephonic notices to and other telephonic communications with the Administrative Agent may be recorded by the Administrative Agent, and each of the parties hereto hereby consents to such recording.

11.03 No Waiver; Cumulative Remedies; Enforcement . No failure by any Lender, any L/C Issuer or the Administrative Agent to exercise, and no delay by any such Person in exercising, any right, remedy, power or privilege hereunder or under any other Loan Document shall operate as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. The rights, remedies, powers and privileges herein provided, and provided under each other Loan Document, are cumulative and not exclusive of any rights, remedies, powers and privileges provided by law.

Notwithstanding anything to the contrary contained herein or in any other Loan Document, the authority to enforce rights and remedies hereunder and under the other Loan Documents against the Loan Parties or any of them shall be vested exclusively in, and all actions and proceedings at law in connection with such enforcement shall be instituted and maintained exclusively by, the Administrative Agent in accordance with Section   9.02 for the benefit of all the Secured Parties; provided , that the foregoing shall not prohibit (a) the Administrative Agent from exercising on its own behalf the rights and remedies that inure to its benefit (solely in its capacity as Administrative Agent) hereunder and under the other Loan Documents, (b) any L/C Issuer from exercising the rights and remedies that inure to its benefit (solely in its capacity as any L/C Issuer) hereunder and under the other Loan Documents, (c) any Lender from exercising setoff rights in accordance with Section   11.08 (subject to the terms of Section   2.12 ), or (d) any Lender from filing proofs of claim or appearing and filing pleadings on its own behalf during the pendency of a proceeding relative to any Loan Party under any Debtor Relief Law; and provided , further , that if at any time there is no Person acting as Administrative Agent hereunder and under

 

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the other Loan Documents, then (i) the Required Lenders shall have the rights otherwise ascribed to the Administrative Agent pursuant to Section   9.02 and (ii) in addition to the matters set forth in clauses   (b) , (c)  and (d)  of the preceding proviso and subject to Section   2.12 , any Lender may, with the consent of the Required Lenders, enforce any rights and remedies available to it and as authorized by the Required Lenders.

11.04 Expenses; Indemnity; Damage Waiver .

(a) Costs and Expenses . Borrower agrees (a) to pay or reimburse all reasonable and documented in reasonable detail out-of-pocket expenses incurred on or after the Closing Date by the Administrative Agent and its Affiliates in connection with the preparation, execution, delivery and administration of this Agreement and the other Loan Documents and any amendment, waiver, consent or other modification of the provisions hereof and thereof (whether or not the transactions contemplated thereby are consummated), limited, in the case of legal fees and expenses, to the Attorney Costs of one primary counsel and, if reasonably necessary, one local counsel in each relevant jurisdiction material to the interests of the Lenders taken as a whole (which may be a single local counsel acting in multiple material jurisdictions), and (b) to pay or reimburse the Administrative Agent, any Lender or any L/C Issuer for all reasonable and documented in reasonable detail out-of-pocket costs and expenses incurred in connection with the enforcement of any rights or remedies under this Agreement or the other Loan Documents (including all such costs and expenses incurred during any legal proceeding, including any proceeding under any Debtor Relief Law, and including all Attorney Costs of one counsel to the Administrative Agent, the Lenders and the L/C Issuers taken as a whole (and, if reasonably necessary, one local counsel in any relevant material jurisdiction (which may be a single local counsel acting in multiple material jurisdictions) and, solely in the event of a conflict of interest between the Administrative Agent, any Lender or any L/C Issuer, where the Person or Persons affected by such conflict of interest inform the Borrower in writing of such conflict of interest, one additional counsel in each relevant material jurisdiction to each group of affected Persons similarly situated taken as a whole)). The agreements in this Section   11.04 shall survive the satisfaction of the Termination Conditions. All amounts due under this Section   11.04 shall be paid promptly following receipt by the Borrower of an invoice relating thereto setting forth such expenses in reasonable detail. If any Loan Party fails to pay when due any costs, expenses or other amounts payable by it hereunder or under any Loan Document, such amount may be paid on behalf of such Loan Party by the Administrative Agent in its reasonable discretion.

(b) Indemnification by Borrower . Borrower shall indemnify the Administrative Agent (and any sub-agent thereof), each Lender, each L/C Issuer, each Arranger, and each Related Party of any of the foregoing Persons (each such Person being called an “ Indemnitee ”) against, and hold each Indemnitee harmless from, any and all losses, claims, damages, liabilities and related expenses (including the fees, charges and disbursements of any counsel for any Indemnitee), and shall indemnify and hold harmless each Indemnitee from all fees and time charges and disbursements for attorneys who may be employees of any Indemnitee, incurred by any Indemnitee or asserted against any Indemnitee by any third party or by any other Loan Party arising out of, in connection with, or as a result of (but limited, in the case of legal fees and expenses, to the Attorney Costs of one counsel to all Indemnitees taken as a whole and, if reasonably necessary, a local counsel for all Indemnitees taken as a whole in each relevant jurisdiction that is material to the interests of such Indemnitees (which may be a single local

 

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counsel acting in multiple material jurisdictions), and solely in the case of a conflict of interest between Indemnitees (where the Indemnitee affected by such conflict of interest informs the Borrower in writing of such conflict of interest), one additional counsel in each relevant jurisdiction to each group of affected Indemnitees similarly situated taken as a whole) (i) the execution or delivery of this Agreement, any other Loan Document or any agreement or instrument contemplated hereby or thereby, the performance by the parties hereto of their respective obligations hereunder or thereunder or the consummation of the Transactions and the other transactions contemplated hereby or thereby and, in the case of the Administrative Agent (and any sub-agent thereof) and its Related Parties only, the administration of this Agreement and the other Loan Documents, (ii) any Loan or Letter of Credit or the use or proposed use of the proceeds therefrom (including any refusal by any L/C Issuer to honor a demand for payment under a Letter of Credit if the documents presented in connection with such demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged presence or Release of Hazardous Materials on or from any property owned, leased or operated by the Borrower or any of its Subsidiaries, or any Environmental Liability related in any way to the Borrower or any of its Subsidiaries, and (iv) any actual or prospective claim, litigation, investigation or proceeding relating to any of the foregoing, whether based on contract, tort or any other theory, whether brought by a third party or by the Borrower or any other Loan Party or the Borrower’s or such Loan Party’s directors, shareholders or creditors, and regardless of whether any Indemnitee is a party thereto, IN ALL CASES, WHETHER OR NOT CAUSED BY OR ARISING, IN WHOLE OR IN PART, OUT OF THE COMPARATIVE, CONTRIBUTORY OR SOLE NEGLIGENCE OF THE INDEMNITEE ; provided that such indemnity shall not, as to any Indemnitee, be available to the extent that a court of competent jurisdiction determines in a final-non-appealable judgment that any such liabilities, obligations, losses, damages, penalties, claims, demands, actions, judgments, suits, costs, expenses or disbursements resulted from (x) the gross negligence, bad faith or willful misconduct of such Indemnitee or of any Related Indemnified Person of such Indemnitee, (y) a material breach of any obligations of such Indemnitee under any Loan Document by such Indemnitee or (z) any dispute solely among Indemnitees or of any Related Indemnified Person of such Indemnitee other than any claims against an Indemnitee in its capacity or in fulfilling its role as Administrative Agent (and any sub-agent thereof), Lender, L/C Issuer or Arranger under the Facility and other than any claims arising out of any act or omission of the Borrower or any of its Affiliates. In the case of an investigation, litigation or other proceeding to which the indemnity in this Section   11.04(b) applies, such indemnity shall be effective whether or not such investigation, litigation or proceeding is brought by any Loan Party, its directors, stockholders or creditors or an Indemnitee or any other Person, whether or not any Indemnitee is otherwise a party thereto and whether or not any of the transactions contemplated hereunder or under any of the other Loan Documents is consummated. All amounts due under this Section   11.04(b) (after the determination of a court of competent jurisdiction, if required pursuant to the terms of this Section   11.04(b) ) shall be paid within twenty Business Days after written demand therefor. The agreements in this Section   11.04(b) shall survive the resignation of the Administrative Agent, the L/C Issuer, the replacement of any Lender, the satisfaction of the Termination Conditions. This Section   11.04(b) shall not apply to Taxes other than any Taxes that represent losses, claims, damages, etc. arising from a non-Tax claim (including a value added tax or similar tax charged with respect to the supply of legal or other services).

 

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(c) Reimbursement by Lenders . To the extent that the Borrower for any reason fails to indefeasibly pay any amount required under clause   (a) or  (b) of this Section 11.04 to be paid by it to the Administrative Agent (or any sub-agent thereof), any L/C Issuer or any Related Party of any of the foregoing, and without limiting its obligation to do so, each Lender severally agrees to pay to the Administrative Agent (or any such sub-agent), such L/C Issuer or such Related Party, as the case may be, such Lender’s Applicable Percentage (determined as of the time that the applicable unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent) or any L/C Issuer in its capacity as such, or against any Related Party of any of the foregoing acting for the Administrative Agent (or any such sub-agent) or such L/C Issuer in connection with such capacity. The obligations of the Lenders under this clause   (c) are subject to the provisions of Section   2.11(d) .

(d) Waiver of Consequential Damages, Etc . To the fullest extent permitted by applicable law, no Indemnitee or any Loan Party shall have any liability, and none of such parties hereto shall assert, and each hereby waives, any claim against any other party hereto, on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to direct or actual damages) arising out of, in connection with, or as a result of, this Agreement, any other Loan Document or any agreement or instrument contemplated hereby, the transactions contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof; provided that the foregoing shall not in any way limit the indemnification and expense reimbursement obligations of the Loan Parties under this Agreement. No Indemnitee referred to in clause   (b) above shall be liable to the Borrower, any Lender, any L/C Issuer or any other Person for any losses, claims, damages, liabilities or expenses of any kind (whether in tort, contract or otherwise) arising from the use by unintended recipients of any information or other materials distributed to such unintended recipients by such Indemnitee through telecommunications, electronic or other information transmission systems in connection with this Agreement or the other Loan Documents or the transactions contemplated hereby or thereby other than for direct or actual losses, claims, damages, liabilities or expenses resulting from the gross negligence or willful misconduct of such Indemnitee or Related Indemnified Person as determined by a final and nonappealable judgment of a court of competent jurisdiction.

(e) Payments . All amounts due under this Section 11.04 shall be payable not later than twenty Business Days after demand therefor.

(f) Survival . The agreements in this Section 11.04 and the indemnity provisions of Section 11.02(e) shall survive the resignation of the Administrative Agent and any L/C Issuer, the replacement of any Lender, the satisfaction of the Termination Conditions.

11.05 Payments Set Aside . To the extent that any payment by or on behalf of the Borrower is made to the Administrative Agent, any L/C Issuer or any Lender, or the Administrative Agent, any L/C Issuer or any Lender exercises its right of setoff, and such payment or the proceeds of such setoff or any part thereof is subsequently invalidated, declared to be fraudulent or preferential, set aside or required (including pursuant to any settlement entered into by the Administrative Agent, such L/C Issuer or such Lender in its discretion) to be repaid to a trustee, receiver or any other party, in connection with any proceeding under any

 

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Debtor Relief Law or otherwise, then (a) to the extent of such recovery, the obligation or part thereof originally intended to be satisfied shall be revived and continued in full force and effect as if such payment had not been made or such setoff had not occurred, and (b) each Lender and each L/C Issuer severally agrees to pay to the Administrative Agent upon demand its applicable share (without duplication) of any amount so recovered from or repaid by the Administrative Agent, plus interest thereon from the date of such demand to the date such payment is made at a rate per annum equal to the Federal Funds Rate from time to time in effect. The obligations of the Lenders and each L/C Issuer under clause   (b) of the preceding sentence shall survive the satisfaction of the Termination Conditions.

11.06 Successors and Assigns .

(a) Successors and Assigns Generally . The provisions of this Agreement and the other Loan Documents shall be binding upon and inure to the benefit of the parties hereto and thereto and their respective successors and assigns permitted hereby, except that the Borrower may not assign or otherwise transfer any of its rights or obligations hereunder without the prior written consent of the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its rights or obligations hereunder except (i) to an assignee in accordance with the provisions of Section   11.06(b) , (ii) by way of participation in accordance with the provisions of Section   11.06(d) , or (iii) by way of pledge or assignment of a security interest subject to the restrictions of Section   11.06(f) (and, except for any assignment subject to the terms of Section 11.06(j) , any other attempted assignment or transfer by any party hereto shall be null and void). Nothing in this Agreement and the other Loan Documents, expressed or implied, shall be construed to confer upon any Person (other than the parties hereto, their respective successors and assigns permitted hereby, Participants to the extent provided in clause   (d) of this Section 11.06 and, to the extent expressly contemplated hereby, the Related Parties of each of the Administrative Agent, each L/C Issuer, each Lender and each Arranger) any legal or equitable right, remedy or claim under or by reason of this Agreement or the other Loan Documents.

(b) Assignments by Lenders . Any Lender may at any time assign to one or more Eligible Assignees all or a portion of its rights and obligations under this Agreement (including all or a portion of its Commitments and the Loans (including for purposes of this Section   11.06(b) , participations in L/C Obligations) at the time owing to it); provided that any such assignment shall be subject to the following conditions:

(i) Minimum Amounts .

(A) in the case of an assignment of the entire remaining amount of the assigning Lender’s Commitment under any Facility and the Loans at the time owing to it under such Facility or in the case of an assignment to a Lender, an Affiliate of a Lender or an Approved Fund, no minimum amount need be assigned; and

(B) in any case not described in clause   (b)(i)(A) of this Section 11.06 , the aggregate amount of the Commitment (which for this purpose includes Loans outstanding thereunder) or, if the Commitment is not then in effect, the principal

 

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outstanding balance of the Loans of the assigning Lender subject to each such assignment, determined as of the date the Assignment and Assumption with respect to such assignment is delivered to the Administrative Agent or, if “Trade Date” is specified in the Assignment and Assumption, as of the Trade Date, shall not be less than $5,000,000, in the case of any assignment in respect of the Revolving Facility, or $1,000,000, in the case of any assignment in respect of any Term Facility, unless each of the Administrative Agent and, with respect to the Revolving Facility only and so long as no Event of Default under Section 9.01(a) , (b) or (i) has occurred and is continuing, the Borrower otherwise consents (each such consent not to be unreasonably withheld or delayed); provided , that concurrent assignments to members of an Assignee Group and concurrent assignments from members of an Assignee Group to a single Eligible Assignee (or to an Eligible Assignee and members of its Assignee Group) will be treated as a single assignment for purposes of determining whether such minimum amount has been met.

(ii) Proportionate Amounts . Each partial assignment shall be made as an assignment of a proportionate part of all the assigning Lender’s rights and obligations under this Agreement with respect to the Loans or the Commitment assigned, except that this clause   (ii) shall not prohibit any Lender from assigning all or a portion of its rights and obligations among separate Facilities on a non- pro rata basis.

(iii) Required Consents . No consent shall be required for any assignment except to the extent required by clause   (b)(i)(B) of this Section 11.06 and, in addition:

(A) (1) with respect to the Revolving Facility only, the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default under Section 9.01(a) , (b) or (i) has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Revolving Lender and (2) with respect to the Term Facilities only, the consent of the Borrower (such consent not to be unreasonably withheld or delayed) shall be required unless (x) an Event of Default under Section 9.01(a) , (b) or (i) has occurred and is continuing at the time of such assignment, or (y) such assignment is to a Lender, an Affiliate of a Lender or an Approved Fund; provided that the Borrower shall be deemed to have consented to any such assignment unless it shall object thereto by written notice to the Administrative Agent within ten (10) Business Days after having received notice thereof;

(B) the consent of the Administrative Agent (such consent not to be unreasonably withheld or delayed) shall be required for assignments in respect of (1) any Term Commitment or Revolving Commitment if such assignment is to a Person that is not a Lender with a Commitment in respect of the applicable Facility, an Affiliate of such a Lender or an Approved Fund of such with respect to such a Lender or (2) any Term Loan to a Person that is not a Lender, an Affiliate of a Lender or an Approved Fund; and

 

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(C) the consent of any L/C Issuer (such consent not to be unreasonably withheld or delayed) shall be required for any assignment that increases the obligation of the assignee to participate in exposure under one or more of its Letters of Credit (whether or not then outstanding).

(iv) Assignment and Assumption . The parties to each assignment shall execute and deliver to the Administrative Agent an Assignment and Assumption, together with a processing and recordation fee in the amount of $3,500; provided , that the Administrative Agent may, in its sole discretion, elect to waive such processing and recordation fee in the case of any assignment. The assignee, if it is not a Lender, shall deliver to the Administrative Agent an Administrative Questionnaire.

(v) Assignments to Borrower . No such assignment shall be made (v) to Parent, Borrower or any Affiliate or Subsidiary of Parent or Borrower; provided that (x) purchases by the Borrower shall be permitted in accordance with Section 2.16 and (y) any Lender may, at any time, assign all or a portion of its Loans to Borrower pursuant to open market purchases pursuant to Section 11.06(l) .

(vi) No Assignment to Natural Persons . No such assignment shall be made to a natural Person (or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of a natural Person).

(vii) Assignments from Defaulting Lenders . In connection with any assignment of rights and obligations of any Defaulting Lender hereunder, no such assignment shall be effective unless and until, in addition to the other conditions thereto set forth herein, the parties to the assignment shall make such additional payments to the Administrative Agent in an aggregate amount sufficient, upon distribution thereof as appropriate (which may be outright payment, purchases by the assignee of participations or subparticipations, or other compensating actions, including funding, with the consent of the Borrower and Administrative Agent, the applicable pro rata portion of Loans previously requested but not funded by the Defaulting Lender, to each of which the applicable assignee and assignor hereby irrevocably consent), to (x) pay and satisfy in full all payment liabilities then owed by such Defaulting Lender to the Administrative Agent, each L/C Issuer and each other Lender hereunder (and interest accrued thereon), and (y) acquire (and fund as appropriate) its full pro rata portion of all Loans and participations in Letters of Credit. Notwithstanding the foregoing, in the event that any assignment of rights and obligations of any Defaulting Lender hereunder shall become effective under applicable law without compliance with the provisions of this paragraph, then the assignee of such interest shall be deemed to be a Defaulting Lender for all purposes of this Agreement until such compliance occurs.

Subject to acceptance and recording thereof by the Administrative Agent pursuant to clause   (c) of this Section 11.06 , from and after the effective date specified in each Assignment and Assumption, the assignee thereunder shall be a party to this Agreement and, to the extent of the interest assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by such Assignment and Assumption, be released from its obligations under

 

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this Agreement (and, in the case of an Assignment and Assumption covering all of the assigning Lender’s rights and obligations under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be entitled to the benefits of Sections   3.01 , 3.04 , 3.05 and 11.04 with respect to facts and circumstances occurring prior to the effective date of such assignment; provided , that except to the extent otherwise expressly agreed by the affected parties, no assignment by a Defaulting Lender will constitute a waiver or release of any claim of any party hereunder arising from that Lender’s having been a Defaulting Lender. Upon request, the Borrower (at its expense) shall execute and deliver a Note to the assignee Lender. Any assignment or transfer by a Lender of rights or obligations under this Agreement that does not comply with this clause (b) shall be treated for purposes of this Agreement as a sale by such Lender of a participation in such rights and obligations in accordance with Section   11.06(d) and, for the avoidance of doubt, such sale shall not be effective until it is recorded in the applicable Participant Register pursuant to Section   11.06(e) .

(c) Register . The Administrative Agent, acting solely for this purpose as a non-fiduciary agent of the Borrower, shall maintain at the Administrative Agent’s Office a copy of each Assignment and Assumption delivered to it (or the equivalent thereof in electronic form) and a register for the recordation of the names and addresses of the Lenders, and the Commitments of, and principal amounts of (and related interest on) the Loans and L/C Obligations owing to, each Lender pursuant to the terms hereof from time to time (the “ Register ”). The entries in the Register shall be conclusive, and the Borrower, the Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement, notwithstanding notice to the contrary. The Register shall be available for inspection by the Borrower and any Lender (with respect to any entry relating to such Lender’s Loans), at any reasonable time and from time to time upon reasonable prior notice.

(d) Participations . Subject to the requirements of clause   (e) of this Section   11.06 , any Lender may at any time, without the consent of, or notice to, the Borrower, the Administrative Agent or any L/C Issuer, sell participations to any Person (other than a natural Person, or a holding company, investment vehicle or trust for, or owned and operated for the primary benefit of, a natural Person, a Defaulting Lender, a Disqualified Lender or the Borrower or any Affiliate or Subsidiary of the Borrower; provided that, notwithstanding anything to the contrary contained herein, participations may be sold to Disqualified Lenders unless the DQ List has been posted to the Platform) (each, a “ Participant ”) in all or a portion of such Lender’s rights and/or obligations under this Agreement (including all or a portion of its Commitment and/or the Loans (including such Lender’s participations in L/C Obligations) owing to it); provided that (i) such Lender’s obligations under this Agreement shall remain unchanged, (ii) such Lender shall remain solely responsible to the other parties hereto for the performance of such obligations and (iii) the Borrower, the Administrative Agent, the Lenders and the L/C Issuers shall continue to deal solely and directly with such Lender in connection with such Lender’s rights and obligations under this Agreement. Any agreement or instrument pursuant to which a Lender sells such a participation shall provide that such Lender shall retain the sole right to enforce this Agreement and to approve any amendment, modification or waiver of any provision of this Agreement; provided that such agreement or instrument may provide that such Lender will not, without the consent of the Participant, agree to any amendment, waiver or other modification described in clauses (b), (c), (d), (e), (g) and (h) of the first proviso to Section   11.01 that affects such

 

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Participant. All parties acknowledge and agree that the Administrative Agent shall have no obligation or duty to monitor or track whether any Disqualified Lender shall have become a Participant hereunder. Subject to clause   (f) of this Section 11.06 , each Borrower agrees that each Participant shall be entitled to the benefits of Sections   3.01 (subject to the requirements and limitations therein, including the requirements under Section 3.01(e) (it being understood that the documentation required by Section 3.01(e) shall be delivered to the participating Lender)), 3.04 and 3.05 to the same extent as if it were a Lender and had acquired its interest by assignment pursuant to Section   11.06(b) . To the extent permitted by law, each Participant also shall be entitled to the benefits of Section   11.08 as though it were a Lender, provided such Participant shall be subject to Section   2.12 as though it were a Lender. For the avoidance of doubt, each Lender shall be responsible for the indemnity under Section 11.04(c) without regard to the existence of any participation.

(e) Participant Register . Each Lender that sells a participation shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each participant and the principal amounts of (and stated interest on) each participant’s interest in Loans made hereunder (the “ Participant Register ”); provided that no Lender shall have any obligation to disclose all or any portion of the Participant Register (including the identity of any Participant or any information relating to a Participant’s interest in any Commitments, Loans, Letters of Credit or its other Obligations under any Loan Document) to any Person except to the extent such disclosure is necessary to establish that any such Commitment, Loan, Letter of Credit or other Obligation is in registered form under Section 5f.103-1(c) of the United States Treasury Regulations. The entries in the Participant Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent, and the Lenders may treat each Person whose name is recorded in the Participant Register as a participant for all purposes of this Agreement. No sale or other transfer of any participation or other beneficial ownership interest in any Loan shall be effective until such sale or transfer is recorded in the applicable Participant Register and, prior to such recordation, all amounts owing to the selling Lender with respect to any Loan shall remain owing to the selling Lender. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining a Participant Register.

(f) Limitations upon Participant Rights . A Participant shall not be entitled to receive any greater payment under Section   3.01 or 3.04 than the applicable Lender would have been entitled to receive with respect to the participation sold to such Participant, unless the sale of the participation to such Participant is made with the Borrower’s prior written consent. A Participant that would be a Foreign Lender if it were a Lender shall not be entitled to the benefits of Section   3.01 unless the Borrower is notified of the participation sold to such Participant and such Participant agrees, for the benefit of the Borrower, to comply with Section   3.01(e) as though it were a Lender.

(g) Certain Pledges . Any Lender may at any time pledge or assign a security interest in all or any portion of its rights under this Agreement (including under its Note, if any) to secure obligations of such Lender, including any pledge or assignment to secure obligations to a Federal Reserve Bank or any other central bank having jurisdiction over such Lender; provided that no such pledge or assignment shall release such Lender from any of its obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.

 

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(h) Special Purpose Funding Vehicles . Notwithstanding anything to the contrary contained herein, any Lender (a “ Granting Lender ”) may, subject to the requirements of clause   (i) of this Section   11.06 , grant to a special purpose funding vehicle identified as such in writing from time to time by the Granting Lender to the Administrative Agent and the Borrower (an “ SPC ”) the option to provide all or any part of any Loan that such Granting Lender would otherwise be obligated to make pursuant to this Agreement; provided that (i) nothing herein shall constitute a commitment by any SPC to fund any Loan, and (ii) if an SPC elects not to exercise such option or otherwise fails to make all or any part of such Loan, the Granting Lender shall be obligated to make such Loan pursuant to the terms hereof or, if it fails to do so, to make such payment to the Administrative Agent as is required under Section   2.11(b)(ii) . Each party hereto hereby agrees that (A) neither the grant to any SPC nor the exercise by any SPC of such option shall increase the costs or expenses or otherwise increase or change the obligations of the Borrower under this Agreement (including its obligations under Section   3.04 ), (B) no SPC shall be liable for any indemnity or similar payment obligation under this Agreement for which a Lender would be liable, and (C) the Granting Lender shall for all purposes, including the approval of any amendment, waiver or other modification of any provision of any Loan Document, remain the lender of record hereunder. The making of a Loan by an SPC hereunder shall utilize the Commitment of the Granting Lender to the same extent, and as if, such Loan were made by such Granting Lender. In furtherance of the foregoing, each party hereto hereby agrees (which agreement shall survive the termination of this Agreement) that, prior to the date that is one year and one day after the payment in full of all outstanding commercial paper or other senior debt of any SPC, it will not institute against, or join any other Person in instituting against, such SPC any bankruptcy, reorganization, arrangement, insolvency, or liquidation proceeding under the laws of the United States or any State thereof. Notwithstanding anything to the contrary contained herein, any SPC may (I) with notice to, but without prior consent of the Borrower and the Administrative Agent, and with the payment of a processing fee in the amount of $3,500 (which processing fee may be waived by the Administrative Agent in its sole discretion), assign all or any portion of its right to receive payment with respect to any Loan to the Granting Lender and (II) disclose on a confidential basis any non-public information relating to its funding of Loans to any rating agency, commercial paper dealer or provider of any surety or Guaranty or credit or liquidity enhancement to such SPC. Each SPC shall be entitled to the benefits of Sections   3.01 , 3.04 , 11.04(a) and 11.04(b) and this Section   11.06 to the same extent as if it were a Lender.

(i) SPC Register . Each Granting Lender shall, acting solely for this purpose as a non-fiduciary agent of the Borrower, maintain a register on which it enters the name and address of each SPC to which it has granted a funding option pursuant to clause   (h) of this Section   11.06 (the “ SPC Register ”). Upon the funding of all or any portion of any Loan by an SPC, the Granting Lender with respect to such SPC shall enter the principal amounts of (and stated interest on) each Loan or portion thereof funded by such SPC on the SPC Register. The entries in the SPC Register shall be conclusive and binding for all purposes, absent manifest error, and the Borrower, the Administrative Agent, and the Lenders may treat each Person whose name is recorded in the SPC Register as an SPC for all purposes of this Agreement. For the avoidance of doubt, the Administrative Agent (in its capacity as Administrative Agent) shall have no responsibility for maintaining an SPC Register. Any funding of all or any portion of any Loan by an SPC with respect to which the requirements of this clause (i) are not satisfied shall be treated for purposes of this Agreement as a sale by the Granting Lender of a participation in such

 

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Granting Lender’s rights and obligations under this Agreement in accordance with Section   11.06(d) and, for the avoidance of doubt, such sale shall not be effective until it is recorded in the applicable Participant Register pursuant to Section   11.06(e) .

(j) No Assignment to a Disqualified Lender . (i) No assignment or, to the extent the DQ List has been posted on the Platform for all Lenders, participation shall be made to any Person that, as of the date (the “ Trade Date ”) on which the applicable Lender entered into a binding agreement to sell and assign or participate all or a portion of its rights and obligations under this Agreement to such Person, was (x) a Competitor, (y) any banks, financial institutions, other institutional lenders and other Persons as specified by written notice to the Administrative Agent and the Lenders (including by posting such notice to the Platform) prior to the Closing Date (or as updated by the Borrower in writing after the Closing Date with respect to banks, financial institutions, other institutional lenders and other Persons who are Affiliates of Competitors (other than any bona fide debt fund)) or (z) any Affiliate of the foregoing (other than any bona fide debt fund) to the extent clearly identifiable on the basis of such Affiliate’s name (collectively, the “ Disqualified Lenders ”) unless the Borrower has consented to such assignment as otherwise contemplated by this Section 11.06 , in which case such Person will not be considered a Disqualified Lender for the purpose of such assignment. For the avoidance of doubt, with respect to any assignee or participant that becomes a Disqualified Lender after the applicable Trade Date, (x) such assignee shall not retroactively be disqualified from becoming a Lender or participant and (y) the execution by the Borrower of an Assignment and Assumption with respect to such assignee will not by itself result in such assignee no longer being considered a Disqualified Lender. Any assignment in violation of this clause (j)(i) shall not be null and void, but the other provisions of this clause (j) shall apply.

(ii) If any assignment is made to any Disqualified Lender without the Borrower’s prior consent in violation of clause (j)(i) above, or if any Person becomes a Disqualified Lender after the applicable Trade Date, the Borrower may, at its sole expense and effort, upon notice to the applicable Disqualified Lender and the Administrative Agent, (A) terminate any Revolving Commitment of such Disqualified Lender and repay all obligations of the Borrower owing to such Disqualified Lender in connection with such Revolving Commitment, (B) in the case of outstanding Term Loans held by Disqualified Lenders, prepay such Term Loans by paying the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such Term Loans, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and under the other Loan Documents and/or (C) require such Disqualified Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in this Section 11.06 ), all of its interest, rights and obligations under this Agreement and the related Loan Documents to an Eligible Assignee that shall assume such obligations at the lesser of (x) the principal amount thereof and (y) the amount that such Disqualified Lender paid to acquire such interests, rights and obligations, in each case plus accrued interest, accrued fees and all other amounts (other than principal amounts) payable to it hereunder and the other Loan Documents; provided that (i) the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.06(b) , (ii) such assignment does not conflict with applicable Laws and (iii) in the case of clause (B) , the

 

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Borrower shall not use the proceeds from any Loans to prepay Term Loans held by Disqualified Lenders.

(iii) Notwithstanding anything to the contrary contained in this Agreement, Disqualified Lenders (A) will not (x) have the right to receive information, reports or other materials provided to Lenders by the Borrower, the Administrative Agent or any other Lender, (y) attend or participate in meetings attended by the Lenders and the Administrative Agent, or (z) access any electronic site established for the Lenders or confidential communications from counsel to or financial advisors of the Administrative Agent or the Lenders, (B) for purposes of any consent to any amendment, waiver or modification of, or any action under, and for the purpose of any direction to the Administrative Agent or any Lender to undertake any action (or refrain from taking any action) under this Agreement or any other Loan Document, each Disqualified Lender will be deemed to have consented in the same proportion as the Lenders that are not Disqualified Lenders consented to such matter, and (C) for purposes of voting on any plan of reorganization or plan of liquidation pursuant to any Debtor Relief Laws (“ Plan of Reorganization ”), each Disqualified Lender party hereto hereby agrees (1) not to vote on such Plan of Reorganization, (2) if such Disqualified Lender does vote on such Plan of Reorganization notwithstanding the restriction in the foregoing clause (1) , such vote will be deemed not to be in good faith and shall be “designated” pursuant to Section 1126(e) of the Bankruptcy Code of the United States (or any similar provision in any other Debtor Relief Laws), and such vote shall not be counted in determining whether the applicable class has accepted or rejected such Plan of Reorganization in accordance with Section 1126(c) of the Bankruptcy Code of the United States (or any similar provision in any other Debtor Relief Laws) and (3) not to contest any request by any party for a determination by the bankruptcy court (or other applicable court of competent jurisdiction) effectuating the foregoing clause (2) .

(iv) The Administrative Agent shall have the right, and the Borrower hereby expressly authorizes the Administrative Agent, to (A) post the list of Disqualified Lenders provided by the Borrower and any updates thereto from time to time (collectively, the “ DQ List ”) on the Platform, including that portion of the Platform that is designated for “public side” Lenders and/or (B) provide the DQ List to each Lender requesting the same.

(k) Resignation as L/C Issuer after Assignment . Notwithstanding anything to the contrary contained herein, if at any time any L/C Issuer assigns all of its Revolving Commitment and Revolving Loans pursuant to Section   11.06(b) , such L/C Issuer may, upon 30 days’ notice to the Borrower and the Lenders, resign as L/C Issuer. In the event of any such resignation of an L/C Issuer, the Borrower shall be entitled to appoint from among the Lenders a successor L/C Issuer hereunder; provided , that no failure by the Borrower to appoint any such successor shall affect the resignation of such L/C Issuer; provided , further , that no Lender shall be required to serve as an L/C Issuer unless such Lender consents in its sole discretion. If an L/C Issuer resigns, it shall retain all the rights, powers, privileges and duties of an L/C Issuer hereunder with respect to all Letters of Credit issued by it outstanding as of the effective date of its resignation as an L/C Issuer and all L/C Obligations with respect thereto (including the right to require the Lenders to make Base Rate Loans or fund risk participations in Unreimbursed Amounts pursuant

 

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to Section   2.03(c) ). Upon the appointment of a successor L/C Issuer, (i) such successor shall succeed to and become vested with all of the rights, powers, privileges and duties of the retiring L/C Issuer, and (ii) the successor L/C Issuer shall issue letters of credit in substitution for the Letters of Credit, if any, outstanding at the time of such succession or make other arrangements satisfactory to the retiring L/C Issuer to effectively assume the obligations of such retiring L/C Issuer with respect to such Letters of Credit.

(l) Open Market Purchases by the Borrower . Notwithstanding anything to the contrary herein, the Borrower may purchase Term Loans in open market transactions (and the Borrower shall not be required to make any such offer to repurchase to all Lenders or to all Lenders of any Class), subject to the following conditions:

(i) no Event of Default shall have occurred and be continuing at the time of purchase of any Term Loans;

(ii) the aggregate principal amount (calculated on the face amount thereof) of all Term Loans so purchased by the Borrower shall automatically be cancelled and retired by the Borrower on the settlement date of the relevant purchase (and may not be resold); and

(iii) no proceeds of any Revolving Facility shall be used to effect such purchase of Term Loans;

The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section   11.06(l) ( provided that no Lender shall have an obligation to sell any Term Loans to the Borrower under this Section 11.06(l) ) and hereby waive the requirements of any provision of this Agreement (including, without limitation, Sections   2.04(a) , 2.04(b) , 2.12 and 11.03 (it being understood and acknowledged that purchases of the Term Loans by the Borrower contemplated by this Section   11.06(l) shall not constitute Investments by the Borrower)) or any other Loan Document that may otherwise prohibit or conflict with any Auction or any other transaction contemplated by this Section   11.06(l) or result in an Event of Default as a result of the purchase of Term Loans pursuant to this Section   11.06(l) .

11.07 Treatment of Certain Information; Confidentiality . Each of the Administrative Agent, the Lenders and the L/C Issuers agrees to maintain the confidentiality of the Information (as defined below), except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates’ respective partners, directors, officers, employees, agents, trustees, advisors and representatives (it being understood that the Persons to whom such disclosure is made will be informed of the confidential nature of such Information and instructed to keep such Information confidential), (b) to the extent required or requested by any regulatory authority purporting to have jurisdiction over it or its Related Parties (including any self-regulatory authority, such as the National Association of Insurance Commissioners), (c) to the extent required by applicable laws or regulations or by any subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the exercise of any remedies hereunder or under any other Loan Document or any action or proceeding relating to this Agreement or any other Loan Document or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing provisions substantially the same as those of this Section 11.07 , to (i) any assignee of or

 

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Participant in, or any prospective assignee of or Participant in, any of its rights or obligations under this Agreement or any Eligible Assignee invited to be a Lender pursuant to Section   2.13(a) or 2.14(b) or (ii) any actual or prospective counterparty (or its advisors) to any swap, derivative or similar transaction under which payments are to be made by reference to the Borrower and its obligations, this Agreement or payments hereunder (it being understood that the DQ List may be disclosed to any assignee or Participant or prospective assignee or Participant in reliance on this clause (f)), (g) on a confidential basis to (i) any rating agency in connection with rating the Borrower or its Restricted Subsidiaries or the credit facilities provided hereunder or (ii) the CUSIP Service Bureau or any similar agency in connection with the issuance and monitoring of CUSIP numbers or other market identifiers with respect to the credit facilities provided hereunder, (h) with the consent of the Borrower, (i) to the extent such Information (x) becomes publicly available other than as a result of a breach of this Section 11.07 or (y) becomes available to the Administrative Agent, any Lender, any L/C Issuer or any of their respective Affiliates on a nonconfidential basis from a source other than the Borrower or (j) to any credit insurance provider relating to the Borrower and its obligations. Nothing herein shall permit the disclosure of confidential Information regarding the Loan Parties or their Affiliates to any Competitor of the Borrower or any of its Subsidiaries or any Disqualified Lender except to the extent required, directly or indirectly, by Law or compulsory legal process or any regulatory authority. In addition, the Administrative Agent and the Lenders may disclose the existence of this Agreement and information about this Agreement to market data collectors, similar service providers to the lending industry and service providers to the Administrative Agent and the Lenders in connection with the administration of this Agreement, the other Loan Documents and the Commitments.

For purposes of this Section 11.07 and Section 7.01 , “ Information ” means all information received from any Loan Party or any Subsidiary thereof relating to any Loan Party or any Subsidiary thereof or their respective businesses, other than any such information that is available to the Administrative Agent, any Lender or any L/C Issuer on a nonconfidential basis prior to disclosure by any Loan Party or any Subsidiary thereof, provided that, in the case of information received from a Loan Party or any such Subsidiary after the date hereof, such information is clearly identified at the time of delivery as confidential. Any Person required to maintain the confidentiality of Information as provided in this Section 11.07 shall be considered to have complied with its obligation to do so if such Person has exercised the same degree of care to maintain the confidentiality of such Information as such Person would accord to its own confidential information.

Each of the Administrative Agent, the Lenders and the L/C Issuers acknowledges that (a) the Information may include material non-public information concerning the Borrower or a Subsidiary, as the case may be, (b) it has developed compliance procedures regarding the use of material non-public information and (c) it will handle such material non-public information in accordance with applicable Law, including United States Federal and state securities Laws.

11.08 Right of Setoff . If an Event of Default shall have occurred and be continuing, each Lender, each L/C Issuer and each of their respective Affiliates is hereby authorized at any time and from time to time, after obtaining the prior written consent of the Administrative Agent, to the fullest extent permitted by applicable law, to set off and apply any and all deposits (general or special, time or demand, provisional or final, in whatever currency) at any time held and other

 

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obligations (in whatever currency) at any time owing by such Lender, such L/C Issuer or any such Affiliate to or for the credit or the account of the Borrower against any and all of the obligations of the Borrower now or hereafter existing under this Agreement or any other Loan Document to such Lender or such L/C Issuer, irrespective of whether or not such Lender or such L/C Issuer shall have made any demand under this Agreement or any other Loan Document and although such obligations of the Borrower may be contingent or unmatured or are owed to a branch or office of such Lender or such L/C Issuer different from the branch or office holding such deposit or obligated on such indebtedness; provided , that in the event that any Defaulting Lender shall exercise any such right of setoff, (x) all amounts so set off shall be paid over immediately to the Administrative Agent for further application in accordance with the provisions of Section 2.18 and, pending such payment, shall be segregated by such Defaulting Lender from its other funds and deemed held in trust for the benefit of the Administrative Agent, the L/C Issuers and the Lenders, and (y) the Defaulting Lender shall provide promptly to the Administrative Agent a statement describing in reasonable detail the Obligations owing to such Defaulting Lender as to which it exercised such right of setoff. The rights of each Lender, each L/C Issuer and their respective Affiliates under this Section 11.08 are in addition to other rights and remedies (including other rights of setoff) that such Lender, such L/C Issuer or their respective Affiliates may have. Each Lender and each L/C Issuer agrees to notify the Borrower and the Administrative Agent promptly after any such setoff and application, provided that the failure to give such notice shall not affect the validity of such setoff and application.

11.09 Interest Rate Limitation . Notwithstanding anything to the contrary contained in any Loan Document, the interest paid or agreed to be paid under the Loan Documents shall not exceed the maximum rate of non-usurious interest permitted by applicable Law (the “ Maximum Rate ”). If the Administrative Agent or any Lender shall receive interest in an amount that exceeds the Maximum Rate, the excess interest shall be applied to the principal of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower. In determining whether the interest contracted for, charged, or received by the Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to the extent permitted by applicable Law, (a) characterize any payment that is not principal as an expense, fee, or premium rather than interest, (b) exclude voluntary prepayments and the effects thereof, and (c) amortize, prorate, allocate, and spread in equal or unequal parts the total amount of interest throughout the contemplated term of the Obligations hereunder.

11.10 Counterparts; Integration; Effectiveness . This Agreement may be executed in counterparts (and by different parties hereto in different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract. This Agreement and the other Loan Documents, and any separate letter agreements with respect to fees payable to the Administrative Agent or any L/C Issuer, constitute the entire contract among the parties relating to the subject matter hereof and supersede any and all previous agreements and understandings, oral or written, relating to the subject matter hereof. Except as provided in Section   4.01 , this Agreement shall become effective when it shall have been executed by the Administrative Agent and when the Administrative Agent shall have received counterparts hereof that, when taken together, bear the signatures of each of the other parties hereto. Delivery of an executed counterpart of a signature page of this Agreement by facsimile or other electronic imaging means shall be effective as delivery of a manually executed counterpart of this Agreement.

 

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11.11 Survival of Representations and Warranties . All representations and warranties made hereunder and in any other Loan Document or other document delivered pursuant hereto or thereto or in connection herewith or therewith shall survive the execution and delivery hereof and thereof. Such representations and warranties have been or will be relied upon by the Administrative Agent and each Lender, regardless of any investigation made by the Administrative Agent or any Lender or on their behalf and notwithstanding that the Administrative Agent or any Lender may have had notice or knowledge of any Default at the time of any Credit Extension, and shall continue in full force and effect until the satisfaction of the Termination Conditions.

11.12 Severability . If any provision of this Agreement or the other Loan Documents is held to be illegal, invalid or unenforceable, (a) the legality, validity and enforceability of the remaining provisions of this Agreement and the other Loan Documents shall not be affected or impaired thereby and (b) the parties shall endeavor in good faith negotiations to replace the illegal, invalid or unenforceable provisions with valid provisions the economic effect of which comes as close as possible to that of the illegal, invalid or unenforceable provisions. The invalidity of a provision in a particular jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. Without limiting the foregoing provisions of this Section 11.12 , if and to the extent that the enforceability of any provisions in this Agreement relating to Defaulting Lenders shall be limited by Debtor Relief Laws, as determined in good faith by the Administrative Agent and the applicable L/C Issuer, as applicable, then such provisions shall be deemed to be in effect only to the extent not so limited.

11.13 Replacement of Lenders . If (a) any Lender requests compensation under Section   3.04 , or if the Borrower is required to pay any additional amount to any Lender or any Governmental Authority for the account of any Lender pursuant to Section   3.01 , (b) any Lender is a Defaulting Lender, (c) in connection with any proposed amendment, modification, termination, waiver or consent with respect to any of the provisions hereof as contemplated by Section   11.01 , the consent of Required Lenders or Required Facility Lenders with respect to the applicable Class(es), as the case may be, shall have been obtained but the consent of one or more of such other Lenders whose consent is required shall not have been obtained, any such Lender (a “ Non-Consenting Lender ”), (d) any other circumstance exists hereunder that gives the Borrower the right to replace a Lender as a party hereto or (e) as a result of a redemption or replacement required by Gaming Law, then the Borrower may, at its sole expense and effort, upon notice to such Lender and the Administrative Agent, replace such Lender by (x) terminating the applicable Commitments of such Lender and repaying all Obligations of the Borrower owing to such Lender relating to the Loans and Commitments of the applicable Class(es) held by such Lender as of such termination date under one or more credit facilities hereunder as the Borrower may elect or (y) requiring such Lender to assign and delegate, without recourse (in accordance with and subject to the restrictions contained in, and consents required by, Section   11.06 ), all of its interests, rights (other than its existing right to payments pursuant to Sections 3.01 and 3.04 ) and Obligations with respect to the Loans and Commitments of the applicable Class(es) under this Agreement and the related Loan Documents to an assignee that shall assume such obligations (which assignee may be another Lender, if a Lender accepts such assignment), provided that:

 

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(i) in the case of an assignment, the Borrower shall have paid to the Administrative Agent the assignment fee (if any) specified in Section 11.06(b) ;

(ii) such Lender shall have received payment of an amount equal to the outstanding principal of its Loans and L/C Advances of the applicable Class(es), accrued interest thereon, accrued fees and all other amounts payable to it hereunder and under the other Loan Documents with respect to such Class(es) (including any amounts under Section   3.05 and, in the case of a Repricing Event described in clause   (ii) of the definition thereof on or prior to the six (6) month anniversary of the Closing Date, the fee described in Section   2.08(c) ) from (x) in the case of an assignment, the assignee (to the extent of such outstanding principal and accrued interest and fees (other than fees payable due to the occurrence of a Repricing Event)) or the Borrower (in the case of all other amounts (including fees payable due to the occurrence of a Repricing Event)) and (y) in the case of a termination and repayment, the Borrower;

(iii) in the case of any such assignment resulting from a claim for compensation under Section   3.04 or payments required to be made pursuant to Section   3.01 , such assignment will result in a reduction in such compensation or payments thereafter;

(iv) such assignment or termination and repayment does not conflict with applicable Laws; and

(v) (x) in the case of an assignment resulting from a Lender becoming a Non-Consenting Lender, the applicable assignee shall have consented to the applicable amendment, waiver, consent or release and such amendment, waiver, consent or release can be effected as a result of such assignment (together with all other such assignments and terminations and repayments required by the Borrower to be made pursuant to this Section 11.13 ) and (y) in the case of a termination and repayment resulting from a Lender becoming a Non-Consenting Lender, such amendment, waiver, consent or release can be effected as a result of such termination and repayment (together with all other such assignments and terminations and repayments required by the Borrower to be made pursuant to this Section 11.13 ).

A Lender shall not be required to make any such assignment or delegation if, prior thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling the Borrower to require such assignment and delegation cease to apply. Notwithstanding the foregoing, each Lender agrees that if the Borrower exercises its option pursuant to this Section   11.13 to cause an assignment by such Lender, such Lender shall, promptly after receipt of written notice of such election, execute and deliver all documentation necessary to effectuate such assignment in accordance with Section   11.06 . In the event that a Lender does not comply with the requirements of the immediately preceding sentence within one Business Day after receipt of such notice (a “ Non-Compliant Lender ”), each Lender hereby authorizes and directs the Administrative Agent to execute and deliver such documentation as may be required to give effect to an assignment in accordance with Section   11.06 on behalf of such Non-Compliant

 

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Lender and any such documentation so executed by the Administrative Agent shall be effective for purposes of documenting an assignment pursuant to Section   11.06 . Any removal of Bank of America or its successor as a Defaulting Lender pursuant to this Section 11.13 shall also constitute the removal of Bank of America or its successor as the Administrative Agent pursuant to Section   10.06 .

11.14 Governing Law; Jurisdiction; Etc .

(a) GOVERNING LAW . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS (OTHER THAN ANY LOAN DOCUMENT WHICH EXPRESSLY STATES THAT IT SHALL BE GOVERNED BY THE LAW OF ANOTHER JURISDICTION) AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT (EXCEPT, AS TO ANY OTHER LOAN DOCUMENT, AS EXPRESSLY SET FORTH THEREIN) AND THE TRANSACTIONS CONTEMPLATED HEREBY AND THEREBY SHALL EACH BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

(b) SUBMISSION TO JURISDICTION . THE BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION OR PROCEEDING OF ANY KIND OR DESCRIPTION, WHETHER IN LAW OR EQUITY, WHETHER IN CONTRACT OR IN TORT OR OTHERWISE, AGAINST THE ADMINISTRATIVE AGENT, ANY LENDER, ANY L/C ISSUER, OR ANY RELATED PARTY OF THE FOREGOING IN ANY WAY RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS RELATING HERETO OR THERETO, IN ANY FORUM OTHER THAN THE COURTS OF THE STATE OF NEW YORK SITTING IN NEW YORK COUNTY AND OF THE UNITED STATES DISTRICT COURT OF THE SOUTHERN DISTRICT OF NEW YORK SITTING IN NEW YORK COUNTY, AND ANY APPELLATE COURT FROM ANY THEREOF, AND EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE JURISDICTION OF SUCH COURTS AND AGREES THAT ALL CLAIMS IN RESPECT OF ANY SUCH ACTION OR PROCEEDING MAY BE HEARD AND DETERMINED IN SUCH NEW YORK STATE COURT OR, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN SUCH FEDERAL COURT. EACH OF THE PARTIES HERETO AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION OR PROCEEDING SHALL BE CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW. NOTHING IN THIS AGREEMENT OR IN ANY OTHER LOAN DOCUMENT SHALL AFFECT ANY RIGHT THAT THE ADMINISTRATIVE AGENT, ANY LENDER OR ANY L/C ISSUER MAY OTHERWISE HAVE TO BRING ANY ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT AGAINST THE BORROWER OR ITS PROPERTIES IN THE COURTS OF ANY JURISDICTION.

(c) WAIVER OF VENUE . EACH OF THE PARTIES HERETO IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY

 

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APPLICABLE LAW, ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE OF ANY ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT IN ANY COURT REFERRED TO IN PARAGRAPH   (B) OF THIS SECTION 11.14 . EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE DEFENSE OF AN INCONVENIENT FORUM TO THE MAINTENANCE OF SUCH ACTION OR PROCEEDING IN ANY SUCH COURT.

(d) SERVICE OF PROCESS . EACH PARTY HERETO IRREVOCABLY CONSENTS TO SERVICE OF PROCESS IN THE MANNER PROVIDED FOR NOTICES IN SECTION   11.02 . NOTHING IN THIS AGREEMENT WILL AFFECT THE RIGHT OF ANY PARTY HERETO TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY APPLICABLE LAW.

11.15 Waiver of Jury Trial . EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 11.15 .

11.16 No Advisory or Fiduciary Responsibility . In connection with all aspects of each transaction contemplated hereby (including in connection with any amendment, waiver or other modification hereof or of any other Loan Document), the Borrower acknowledges and agrees, that: (i) (A) the arranging and other services regarding this Agreement provided by the Administrative Agent and the Arrangers are arm’s-length commercial transactions between the Borrower and its Affiliates, on the one hand, and the Administrative Agent and the Arrangers, on the other hand, (B) the Borrower has consulted its own legal, accounting, regulatory and tax advisors to the extent it has deemed appropriate, and (C) the Borrower is capable of evaluating, and understands and accepts, the terms, risks and conditions of the transactions contemplated hereby and by the other Loan Documents; (ii) (A) each of the Administrative Agent, each Arranger and each Lender is and has been acting solely as a principal and, except as expressly agreed in writing by the relevant parties, has not been, is not, and will not be acting as an advisor, agent or fiduciary for the Borrower Parties, their Affiliates or any other Person and (B) neither the Administrative Agent nor any Arranger nor any Lender has any obligation to the Borrower Parties or their Affiliates with respect to the transactions contemplated hereby except those obligations expressly set forth herein and in the other Loan Documents; and (iii) the Administrative Agent, the Arrangers, the Lenders and their respective Affiliates may be engaged in a broad range of transactions that involve interests that differ from those of the Borrower

 

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Parties and their Affiliates, and neither the Administrative Agent nor any Arranger nor any Lender has any obligation under the Loan Documents to disclose any of such interests to the Borrower Parties or their Affiliates. To the fullest extent permitted by Law, each Borrower hereby waives and releases any claims that it may have against the Administrative Agent and each Arranger with respect to any breach or alleged breach of agency or fiduciary duty in connection with any aspect of any transaction contemplated hereby.

11.17 Electronic Execution of Assignments and Certain Other Documents . The words “execution,” “execute,” “signed,” “signature,” and words of like import in or related to any document to be signed in connection with this Agreement and the transactions contemplated hereby (including, without limitation, Assignment and Assumptions, amendments or other Committed Loan Notices, waivers and consents) shall be deemed to include electronic signatures, the electronic matching of assignment terms and contract formations on electronic platforms approved by the Administrative Agent, or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that notwithstanding anything contained herein to the contrary the Administrative Agent is under no obligation to agree to accept electronic signatures in any form or in any format unless expressly agreed to by the Administrative Agent pursuant to procedures approved by it.

11.18 USA PATRIOT Act . Each Lender that is subject to the Act (as hereinafter defined) and the Administrative Agent (for itself and not on behalf of any Lender) hereby notifies the Borrower that pursuant to the requirements of the USA PATRIOT Act (Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the “ Act ”), it is required to obtain, verify and record information that identifies each Loan Party, which information includes the name and address of each Loan Party and other information that will allow such Lender or the Administrative Agent, as applicable, to identify each Loan Party in accordance with the Act. The Borrower shall, promptly following a request by the Administrative Agent or any Lender, provide all documentation and other information that the Administrative Agent or such Lender requests in order to comply with its ongoing obligations under applicable “know your customer” and anti-money laundering rules and regulations, including the Act.

11.19 Acknowledgement and Consent to Bail-In of EEA Financial Institutions . Notwithstanding anything to the contrary in any Loan Document or in any other agreement, arrangement or understanding among any such parties, each party hereto acknowledges that any liability of any Lender or any L/C Issuer that is an EEA Financial Institution arising under any Loan Document, to the extent such liability is unsecured, may be subject to the write-down and conversion powers of an EEA Resolution Authority and agrees and consents to, and acknowledges and agrees to be bound by:

(a) the application of any Write-Down and Conversion Powers by an EEA Resolution Authority to any such liabilities arising hereunder which may be payable to it by any Lender or any L/C Issuer that is an EEA Financial Institution; and

 

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(b) the effects of any Bail-in Action on any such liability, including, if applicable:

(i) a reduction in full or in part or cancellation of any such liability;

(ii) a conversion of all, or a portion of, such liability into shares or other instruments of ownership in such EEA Financial Institution, its parent undertaking, or a bridge institution that may be issued to it or otherwise conferred on it, and that such shares or other instruments of ownership will be accepted by it in lieu of any rights with respect to any such liability under this Agreement or any other Loan Document; or

(iii) the variation of the terms of such liability in connection with the exercise of the write-down and conversion powers of any EEA Resolution Authority.

11.20 Gaming Law .

(a) This Agreement and the other Loan Documents are subject to the Gaming Laws and the laws involving the sale, distribution and possession of alcoholic beverages (the “ Liquor Laws ”). Without limiting the foregoing, each of the Administrative Agent, the Lenders and participants acknowledges that (i) it is subject to being called forward by the Gaming Authorities or Governmental Authorities enforcing the Liquor Laws (each a “ Liquor Authority ”), in the discretion of each of them, for licensing or a finding of suitability or to file or provide other information, and (ii) all rights, remedies and powers under this Agreement and the other Loan Documents, including with respect to the entry into and ownership and operation of the Gaming Facilities, and the possession or control of gaming equipment, alcoholic beverages or a gaming or liquor license, may be exercised only to the extent that the exercise thereof does not violate any applicable provisions of the Gaming Laws and Liquor Laws and only to the extent that required approvals (including prior approvals) are obtained from the requisite Governmental Authorities.

(b) Each Creditor Party agrees to cooperate with each Gaming Authority and each Liquor Authority (or, in each case, to be subject to Section   11.13 ) in connection with the provisions of such documents or other information as may be requested by such Gaming Authority or Liquor Authority relating to any Borrower Party or to the Loan Documents.

11.21 Joint and Several Obligations . The Borrower and each other Person that becomes a Borrower in accordance with Section 2.19 shall be obligated for all of the Obligations on a joint and several basis, notwithstanding which of them have directly received the proceeds or benefit of any particular Credit Extension, provided that, anything to the contrary herein notwithstanding (including Exhibit G), the liability of each Person hereafter formed and designated as an additional borrower in accordance with Section 2.19 , in its capacity as a Borrower (but not in its capacity as a Guarantor, to the extent applicable) may be limited in a similar manner if so provided in the Assumption Agreement executed by that additional Borrower. The Borrower and each other Person that becomes a Borrower in accordance with Section 2.19 acknowledges and agrees that, for purposes of the Loan Documents, the Borrower, each such additional borrower and the Guarantors constitute a single integrated financial

 

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enterprise and that each receives a benefit from the availability of credit under this Agreement. The Borrower and each other Person that becomes a Borrower in accordance with Section 2.19 hereby waives all defenses arising under the Laws of suretyship, to the extent such Laws are applicable, in connection with their joint and several obligations under this Agreement. Without limiting the foregoing, the Borrower agrees to the Joint Borrower Provisions set forth in Exhibit G, incorporated by this reference.

11.22 ENTIRE AGREEMENT . THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT ORAL AGREEMENTS OF THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS AMONG THE PARTIES.

 

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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.

 

Borrower:
MGM GROWTH PROPERTIES LIMITED PARTNERSHIP LP
By:  

/s/ John M. McManus

Name:   John M. McManus
Title:   Secretary

 

[ Signature Page to Credit Agreement ]

BANK OF AMERICA, N.A.,
as Administrative Agent, a Revolving Lender, a Term A Lender, the sole initial Term B Lender and an L/C Issuer
By:   /s/ Brian D. Corum
Name:   Brian D. Corum
Title:   Managing Director

 

[ Signature Page to Credit Agreement ]

J.P. MORGAN CHASE BANK, N.A.,
as a Revolving Lender and a Term A Lender
By:  

/s/ Chiara Carter

Name:   Chiara Carter
Title:   Vice President

 

[ Signature Page to Credit Agreement ]

BARCLAYS BANK PLC ,
as a Revolving Lender and a Term A Lender
By:  

/s/ Jeremy Hazan

Name:   Jeremy Hazan
Title:   Managing Director

 

[ Signature Page to Credit Agreement ]

CITIBANK, N.A. ,
as a Revolving Lender and a Term A Lender
By:  

/s/ Michael Tortora

Name:   Michael Tortora
Title:   Director

 

[ Signature Page to Credit Agreement ]

DEUTSCHE BANK AG NEW YORK BRANCH,
as a Revolving Lender and a Term A Lender
By:  

/s/ Mary Kay Coyle

Name:   Mary Kay Coyle
Title:   Managing Director
By:  

/s/ Dusan Lazarov

Name:   Dusan Lazarov
Title:   Director

 

[ Signature Page to Credit Agreement ]

BNP PARIBAS,
as a Revolving Lender and a Term A Lender
By:  

/s/ Gregoire Poussard

Name:   Gregoire Poussard
Title:   Vice President
By:  

/s/ James McHale

Name:   James McHale
Title:   Managing Director

 

[ Signature Page to Credit Agreement ]

FIFTH THIRD BANK,
as a Revolving Lender and a Term A Lender
By:  

/s/ Knight D. Kieffer

Name:   Knight D. Kieffer
Title:   Vice President

 

[ Signature Page to Credit Agreement ]

SUNTRUST BANK,
as a Revolving Lender and a Term A Lender
By:  

/s/ J. Haynes Gentry III

Name:   J. Haynes Gentry III
Title:   Director

 

[ Signature Page to Credit Agreement ]

SUMITOMO MITSUI BANKING CORPORATION,
as a Revolving Lender and a Term A Lender
By:  

/s/ William G. Karl

Name:   William G. Karl
Title:   Executive Officer

 

[ Signature Page to Credit Agreement ]

MORGAN STANLEY BANK, N.A.,
as a Revolving Lender and a Term A Lender
By:  

/s/ Justin Kotzin

Name:   Justin Kotzin
Title:   Authorized Signatory

 

[ Signature Page to Credit Agreement ]

CREDIT AGRICOLE CORPORATE AND INVESTMENT BANK,
as a Revolving Lender and a Term A Lender
By:  

/s/ Steven Jonassen

Name:   Steven Jonassen
Title:   Managing Director
By:  

/s/ Joseph A. Asciolla

Name:   Joseph A. Asciolla
Title:   Managing Director

 

[ Signature Page to Credit Agreement ]

THE BANK OF NOVA SCOTIA,
as a Revolving Lender and a Term A Lender
By:  

/s/ Winston Lua

Name:   Winston Lua
Title:   Director

 

[ Signature Page to Credit Agreement ]

CITIZENS BANK, N.A.,
as a Revolving Lender and a Term A Lender
By:  

/s/ Mark Sanko

Name:   Mark Sanko
Title:   Managing Director

 

[ Signature Page to Credit Agreement ]

Schedule 1.01: Mortgaged Real Property

Property commonly known as The Mirage Casino Hotel, described as follows:

LEGAL DESCRIPTION

PARCEL I:

THAT PORTION OF LOT ONE (1) OF “TI/MIRAGE ONE LOT COMMERCIAL SUBDIVISION”, A COMMERCIAL SUBDIVISION, ON FILE IN BOOK 141 OF PLATS, PAGE 55 IN THE CLARK COUNTY RECORDER’S OFFICE, LYING WITHIN THE WEST HALF (W 1/2) OF SECTION 16 AND THE EAST HALF (E 1/2) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 16;

THENCE ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 16 NORTH 00°24’19” WEST 493.27 FEET TO THE POINT OF BEGINNING;

THENCE SOUTH 63°50’11” EAST 94.06 FEET;

THENCE SOUTH 33°16’55” WEST 26.46 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4.60 FEET, A CENTRAL ANGLE OF 92°13’00”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 08°52’21” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 7.40 FEET;

THENCE SOUTH 01°21’09” WEST 36.82 FEET;

THENCE SOUTH 01°32’41” WEST 53.52 FEET TO THE BEGINNING POINT OF CUSP OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 35.00 FEET, A CENTRAL ANGLE OF 04°29’12” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 87°31’21” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 2.74 FEET;

THENCE SOUTH 01°14’10” WEST 90.31 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 278.00 FEET, A CENTRAL ANGLE OF 22°05’33”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 89°07’35” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 107.19 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 249.00 FEET, A CENTRAL ANGLE OF 26°50’50”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 68°46’53” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 116.67 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 298.00 FEET, A CENTRAL ANGLE OF 21°01’58”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 41°56’03” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 109.39 FEET;

THENCE SOUTH 69°05’55” EAST 50.46 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 830.00 FEET, A CENTRAL ANGLE OF 09°03’24”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 20°46’30” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 131.20 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 49.80 FEET, A CENTRAL ANGLE OF 14°47’53”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 11°43’06” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 12.86 FEET;

THENCE NORTH 86°55’14” EAST 12.30 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD AS DEDICATED IN DOCUMENT 931020 INSTRUMENT 01511 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE FOLLOWING FIFTEEN (15) COURSES;

 

1) THENCE SOUTH 11°41’28” EAST, 22.85 FEET;

 

2) THENCE SOUTH 24°39’16” WEST, 29.31 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 210.00 FEET AND A CENTRAL ANGLE OF 04°36’48”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 24°39’17” EAST;

 

3) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 16.91 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 8.00 FEET, A CENTRAL ANGLE OF 86°03’20” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 29°16’06” EAST;

 

4) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.02 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4066.00 FEET, A CENTRAL ANGLE OF 03°11’04” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 64°40’34” WEST;

 

5) THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 225.98 FEET TO THE BEGINNING OF A NON-TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 1000.00 FEET, A CENTRAL ANGLE OF 05°04’14” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 67°51’39” WEST;

  6) THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 88.50 FEET;

 

7) THENCE SOUTH 17°04’07” WEST, 271.00 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4054.00 FEET AND A CENTRAL ANGLE OF 02°20’57”;

 

8) THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 166.22 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 8.00 FEET, A CENTRAL ANGLE OF 91°48’30” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 75°16’49” EAST;

 

9) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.82 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 200.00 FEET, A CENTRAL ANGLE OF 02°20’23” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 16°31’41” WEST;

 

10) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 8.17 FEET;

 

11) THENCE SOUTH 18°52’04” WEST, 33.74 FEET;

 

12) THENCE SOUTH 45°12’14” WEST, 19.51 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 61.24 FEET, A CENTRAL ANGLE OF 60°48’08” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 45°12’14” EAST;

 

13) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 64.99 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 248.30 FEET, A CENTRAL ANGLE OF 06°46’08” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 73°59’38” WEST;

 

14) THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 29.33 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 512.04 FEET, A CENTRAL ANGLE OF 02°59’41” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 80°45’46” EAST;

 

15) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 26.76 FEET;

THENCE DEPARTING SAID RIGHT-OF-WAY LINE, NORTH 88°44’46” WEST, 138.91 FEET;

THENCE NORTH 88°51’07” WEST, 1924.03 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 45.00 FEET, A CENTRAL ANGLE OF 44°33’49” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 45°13’22” WEST, SAID POINT BEING ON THE EAST RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE AND INDUSTRIAL ROAD (ALSO KNOWN AS SAMMY DAVIS JR. DRIVE) AS DEDICATED IN DOCUMENT 940831:01339 OF OFFICIAL RECORDS IN THE CLARK COUNTY NEVADA RECORDER’S OFFICE;

THENCE ALONG SAID EAST RIGHT-OF-WAY LINE THE FOLLOWING NINE (9) COURSES:

 

1) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 35.00 FEET;

 

2) THENCE NORTH 00°12’49” WEST, 137.18 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 40.00 FEET AND A CENTRAL ANGLE OF 91°31’55”;

 

3) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 63.90 FEET;

 

4) THENCE NORTH 00°12’49” WEST, 46.19 FEET;

 

5) THENCE NORTH 35°46’51” EAST, 5.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 75.00 FEET, A CENTRAL ANGLE OF 68°15’46” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 35°46’42” WEST;

 

6) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 89.36 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 500.00 FEET, A CENTRAL ANGLE OF 04°42’30” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 75°57’32” WEST;

 

7) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 41.09 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 143.00 FEET, A CENTRAL ANGLE OF 08°20’29” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 71°15’02” WEST;

 

8) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 20.82 FEET;

 

9) THENCE NORTH 27°05’27” EAST, 389.60 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 6000.00 FEET, A CENTRAL ANGLE OF 00°28’42” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 63°51’57” WEST;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 0496:0399453 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, THE FOLLOWING THREE (3) COURSES:

 

1) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 50.09 FEET;

 

2) NORTH 27°37’16” EAST, 228.55 FEET;

 

3)

THENCE NORTH 89°12’43” WEST, 9.14 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 6000.00 FEET, A CENTRAL ANGLE OF 00°22’57” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 65°32’14” EAST, SAID POINT ALSO BEING ON THE EAST RIGHT-OF-WAY LINE OF

  INDUSTRIAL ROAD AS DEDICATED IN THE AFOREMENTIONED DOCUMENT 940831:01339 OF OFFICIAL RECORDS;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD THE FOLLOWING TWO (2) COURSES:

 

1) THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 40.06 FEET;

 

2) THENCE NORTH 24°04’49” EAST ALONG SAID RIGHT-OF-WAY, 142.71 FEET;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 940831:01338 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, THE FOLLOWING EIGHT (8) COURSES:

 

1) NORTH 24°06’50” EAST, 76.42 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 40.00 FEET AND A CENTRAL ANGLE OF 90°36’48”;

 

2) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 63.26 FEET;

 

3) THENCE NORTH 24°43’38” EAST, 32.50 FEET;

 

4) THENCE NORTH 65°16’22” WEST, 1.55 FEET;

 

5) THENCE NORTH 24°43’38” EAST, 32.50 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 40.00 FEET, A CENTRAL ANGLE OF 89°23’12” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 24°43’38” WEST;

 

6) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 62.40 FEET;

 

7) THENCE NORTH 24°06’50” EAST, 30.30 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 3000.00 FEET, A CENTRAL ANGLE OF 03°53’45” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 65°53’11” WEST;

 

8) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 203.99 FEET;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 900501:00870 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, NORTH 70°41’14” EAST, 13.27 FEET (RECORD) 17.49 FEET (MEASURED) TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 43.38 FEET, A CENTRAL ANGLE OF 44°15’53” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 69°15’46” WEST;

THENCE DEPARTING SAID RIGHT-OF-WAY LINE AND ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 33.51 FEET;

THENCE SOUTH 62°18’55” EAST, 307.43 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 228.35 FEET, A CENTRAL ANGLE OF 20°36’47” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 24°32’14” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 82.15 FEET;

THENCE SOUTH 89°17’23” EAST, 143.71 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 1275.46 FEET, A CENTRAL ANGLE OF 04°52’51” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 01°57’34” EAST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 108.65 FEET;

THENCE NORTH 33°06’16” EAST 24.72 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 45.50 FEET, A CENTRAL ANGLE OF 68°17’20” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 00°32’30” EAST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 54.23 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 25.00 FEET, A CENTRAL ANGLE OF 69°47’28” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 68°49’50” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 30.45 FEET;

THENCE SOUTH 89°11’01” EAST, 61.01 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 70.00 FEET AND A CENTRAL ANGLE OF 90°59’03”;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 111.16 FEET TO A POINT OF CUSP ON THE EAST RIGHT-OF-WAY LINE OF VEGAS PLAZA DRIVE AS SHOWN BY MAP THEREOF IN BOOK 46, PAGE 64 OF PLATS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE;

THENCE SOUTH 00°12’48” EAST 39.29 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 21.50 FEET, A CENTRAL ANGLE OF 55°05’49”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 54°34’21” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 20.67 FEET;

THENCE SOUTH 88°49’38” EAST 99.04 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 449.10 FEET, A CENTRAL ANGLE OF 04°47’17”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 11°59’48” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 37.53 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 21.10 FEET, A CENTRAL ANGLE OF 49°21’12”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 16°49’25” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 18.18 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 10.70 FEET, A CENTRAL ANGLE OF 27°53’16”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 32°29’52” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 5.21 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 12.70 FEET, A CENTRAL ANGLE OF 23°06’26”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 04°37’48” EAST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 5.12 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 68.60 FEET, A CENTRAL ANGLE OF 41°03’53”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 13°26’43” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 49.17 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 52.50 FEET, A CENTRAL ANGLE OF 43°00’24”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 23°03’16” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 39.41 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 177.80 FEET, A CENTRAL ANGLE OF 19°15’45”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 15°57’04” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 59.78 FEET;

THENCE SOUTH 88°48’48” EAST 117.50 FEET;

THENCE SOUTH 63°50’11” EAST 23.91 FEET TO THE POINT OF BEGINNING.

THE ABOVE DESCRIPTION WAS PREPARED BY RANDY A. OXBORROW, PLS NO. 10119, OF LOCHSA SURVEYING, 6345 S. JONES BLVD., SUITE 200, LAS VEGAS, NV 89118, AND REPRESENTS THE REMAINDER OF LOT 1 OF “TI/MIRAGE ONE LOT COMMERCIAL SUBDIVISION” ON FILE IN BOOK 141 OF PLATS, PAGE 55, OFFICIAL RECORDS, AFTER EXCEPTING THEREFROM THOSE CERTAIN RECORDS OF SURVEY FILED IN FILE 177 OF SURVEYS, PAGE 0064, OFFICIAL RECORDS; FILE 177 OF SURVEYS, PAGE 0065, OFFICIAL RECORDS; AND FILE 177 OF SURVEYS, PAGE 0066, OFFICIAL RECORDS.

PARCEL II:

THAT PORTION OF LOT ONE (1) OF “TI/MIRAGE ONE LOT COMMERCIAL SUBDIVISION”, A COMMERCIAL SUBDIVISION, ON FILE IN BOOK 141 OF PLATS, PAGE 55 IN THE CLARK COUNTY RECORDER’S OFFICE, LYING WITHIN THE WEST HALF (W 1/2) OF SECTION 16, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT OF THE WESTERLY LINE AS DEDICATED BY THOSE CERTAIN DOCUMENTS RECORDED IN BOOK 931020 AS INSTRUMENT NO. 01511 OF OFFICIAL RECORDS IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, FROM WHICH A LAS VEGAS BOULEVARD RIGHT-OF-WAY BRASS CAP NO. 029Y, AS SHOWN BY THAT CERTAIN MAP IN FILE 169, PAGE 20 OF SURVEYS IN CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEARS NORTH 31°42’48” EAST 217.60 FEET;

THENCE SOUTH 28°49’54” WEST 8.60 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE WEST, HAVING A RADIUS OF 50.00 FEET, A CENTRAL ANGLE OF 52°41’26”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 66°21’08”EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 45.98 FEET;

THENCE SOUTH 29°02’34” WEST 60.11 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 50.00 FEET AND A CENTRAL ANGLE OF 07°07’30”;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 6.22 FEET;

THENCE SOUTH 36°10’04” WEST 87.41 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 100.00 FEET AND A CENTRAL ANGLE OF 07°07’30”.

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 12.44 FEET;

THENCE SOUTH 29°02’34’ WEST 146.78 FEET TO A POINT FROM WHICH A LAS VEGAS BOULEVARD RIGHT-OF-WAY BRASS CAP NO. 027Y, AS SHOWN BY THAT CERTAIN MAP IN FILE 169, PAGE 20 OF SURVEYS IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEARS NORTH 56°46’46” WEST 8.60 FEET AND THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 75.00 FEET AND A CENTRAL ANGLE OF 49°15’58”;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 64.49 FEET;

THENCE SOUTH 86°55’14” WEST 12.30 FEET TO THE BEGINNING OF A TANGENT CURVE CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 49.80 FEET AND A CENTRAL ANGLE OF 14°47’52”;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.86 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 830.00 FEET, A CENTRAL ANGLE OF 09°03’24”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 11°43’06” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 131.20 FEET;

THENCE NORTH 69°05’55” WEST 50.46 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 298.00 FEET AND A CENTRAL ANGLE OF 21°01’58”;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 109.39 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 249.00 FEET, A CENTRAL ANGLE OF 26°50’50”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 41°56’03” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 116.67 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 278.00 FEET, A CENTRAL ANGLE OF 22°05’32”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 68°46’53” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 107.19 FEET;

THENCE NORTH 01°14’10” EAST 90.31 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 35.00 FEET, A CENTRAL ANGLE OF 69°24’13”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 87°59’26” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 42.40 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 365.00 FEET, A CENTRAL ANGLE OF 09°29’47”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 20°08’21” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 60.50 FEET;

THENCE NORTH 81°57’31” EAST 31.42 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 385.00 FEET, A CENTRAL ANGLE OF 05°49’26”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 05°08’41” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 39.13 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 43.00 FEET, A CENTRAL ANGLE OF 17°10’23”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 00°40’45” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.89 FEET;

THENCE SOUTH 67°00’52” EAST 15.55 FEET;

THENCE SOUTH 88°37’20” EAST 143.54 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 44.00 FEET, A CENTRAL ANGLE OF 27°03’59”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 04°30’55” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 20.79 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE , CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 36.00 FEET, A CENTRAL ANGLE OF 31°43’57”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 29°09’16” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 19.94 FEET TO THE BEGINNING OF A NON-TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 435.00 FEET, A CENTRAL ANGLE OF 12°24’36”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 07°11’21” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 94.22 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 455.00 FEET, A CENTRAL ANGLE OF 09°44’50”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 19°35’57” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 77.41 FEET;

THENCE SOUTH 62°30’28” EAST 50.13 FEET;

THENCE SOUTH 60°07’37” EAST 18.81 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 35.54 FEET, A CENTRAL ANGLE OF 23°56’30”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 37°39’02” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 14.85 FEET TO THE POINT OF BEGINNING.

SAID LAND IS ALSO SHOWN AS JOINT VALET PARCEL ON THAT CERTAIN RECORD OF SURVEY FILED IN FILE 177 OF SURVEYS, PAGE 0065, OFFICIAL RECORDS.

PARCEL III:

THAT PORTION OF LOT ONE (1) OF “TI/MIRAGE ONE LOT COMMERCIAL SUBDIVISION”, A COMMERCIAL SUBDIVISION, ON FILE IN BOOK 141 OF PLATS, PAGE 55 IN THE CLARK COUNTY RECORDER’S OFFICE, LYING WITHIN THE EAST HALF (E 1/2) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SAID SECTION 17;

THENCE NORTH 53°33’40” WEST 828.35 FEET TO AN ALUMINUM CAP, PLS #6030 AT THE CENTER OF THE CUL-DE-SAC OF PERSHING AVENUE;

THENCE SOUTH 00°32’30” EAST 45.50 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF PERSHING AVENUE AND THE POINT OF BEGINNING;

THENCE SOUTH 33°06’16” WEST, DEPARTING SAID RIGHT-OF-WAY LINE, 24.72 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 1275.46 FEET, A CENTRAL ANGLE OF 04°52’52”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 06°50’26” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 108.66 FEET;

THENCE NORTH 89°17’23” WEST 143.71 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 228.35 FEET, A CENTRAL ANGLE OF 20°36’47”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 03°55’27” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 82.15 FEET;

THENCE NORTH 62°18’55” WEST 307.43 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 43.38 FEET, A CENTRAL ANGLE OF 44°15’53”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 24°59’53” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 33.51 FEET TO THE EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED BY THOSE CERTAIN DOCUMENTS RECORDED IN BOOK 900501 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00870 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT FOUR (4) COURSES: NORTH 70°41’14” EAST 4.22 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE EAST, HAVING A RADIUS OF 35.00 FEET, A CENTRAL ANGLE OF 47°55’52”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 70°40’14” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 29.28 FEET;

THENCE NORTH 28°36’06” EAST 257.71 FEET;

THENCE NORTH 27°38’40” EAST 227.58 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF SPRING MOUNTAIN ROAD AS DEDICATED BY THOSE CERTAIN DOCUMENTS RECORDED IN BOOK 980415 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00154 IN

CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEING THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 30.00 FEET AND A CENTRAL ANGLE OF 67°45’49;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 35.48 FEET;

THENCE SOUTH 84°35’31” EAST 337.34 FEET;

THENCE SOUTH 00°25’43” WEST 292.58 FEET TO THE RIGHT-OF-WAY LINE OF BLACK CANYON AVENUE AND THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 45.50 FEET, A CENTRAL ANGLE OF 73°47’02”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 66°18’24” WEST;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 58.59 FEET;

THENCE SOUTH 50°05’26” EAST 24.08 FEET;

THENCE SOUTH 00°48’59” WEST, DEPARTING SAID RIGHT-OF-WAY LINE, 150.00 FEET TO THE NORTH RIGHT-OF-WAY LINE OF PERSHING AVENUE;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: SOUTH 65°38’25” WEST 7.82 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE EAST, HAVING A RADIUS OF 45.50 FEET AND A CENTRAL ANGLE OF 156°10’55”;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 124.03 FEET TO THE POINT OF BEGINNING;

SAID LAND IS ALSO SHOWN AS JOINT EMPLOYEE GARAGE PARCEL ON THAT CERTAIN RECORD OF SURVEY FILED IN FILE 177 OF SURVEYS, PAGE 0066, OFFICIAL RECORDS.

THE ABOVE PARCEL I, PARCEL II AND PARCEL III ARE ALSO DESCRIBED AS FOLLOWS:

THAT PORTION OF BOOK 19880407, INSTRUMENT 00313 AND BOOK 19901004, INSTRUMENT 00062 IN BOOK OF DEEDS, ON FILE IN THE CLARK COUNTY RECORDER’S OFFICE, LOCATED WITHIN THE WEST HALF (W 1/2) OF SECTION 16 AND THE EAST HALF (E 1/2) OF SECTION 17, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 16;

THENCE ALONG THE WEST LINE OF THE NORTHWEST QUARTER (NW 1/4) OF SAID SECTION 16 NORTH 00°24’19” WEST 493.27 FEET TO THE POINT OF BEGINNING; THENCE SOUTH 63°50’11” EAST 94.06 FEET;

THENCE SOUTH 33°16’55” WEST 26.46 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4.60 FEET, A CENTRAL ANGLE OF 92°13’00”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 08°52’21” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 7.40 FEET;

THENCE SOUTH 01°21’09” WEST 36.82 FEET;

THENCE SOUTH 01°32’41” WEST 53.52 FEET TO THE POINT OF CUSP OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 35.00 FEET, A CENTRAL ANGLE OF 64°55’01” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 87°31’21” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 39.66 FEET TO THE BEGINNING OF A NON-TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 365.00 FEET, A CENTRAL ANGLE OF 09°29’47”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 20°08’21” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 60.50 FEET;

THENCE NORTH 81°57’31” EAST 31.42 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 385.00 FEET, A CENTRAL ANGLE OF 05°49’26”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 05°08’41” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 39.13 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 43.00 FEET, A CENTRAL ANGLE OF 17°10’23”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 00°40’45” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.89 FEET;

THENCE SOUTH 67°00’52” EAST 15.55 FEET;

THENCE SOUTH 88°37’20” EAST 143.54 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 44.00 FEET, A CENTRAL ANGLE OF 27°03’59”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 04°30’55” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 20.79 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST,

HAVING A RADIUS OF 36.00 FEET, A CENTRAL ANGLE OF 31°43’57”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 29°09’16” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 19.94 FEET TO THE BEGINNING OF A NON-TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 435.00 FEET, A CENTRAL ANGLE OF 12°24’36”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 07°11’21” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 94.22 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 455.00 FEET, A CENTRAL ANGLE OF 09°44’50”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 19°35’57” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 77.41 FEET;

THENCE SOUTH 62°30’28” EAST 50.13 FEET;

THENCE SOUTH 60°07’37” EAST 18.81 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 35.54 FEET, A CENTRAL ANGLE OF 23°56’30”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 37°39’02” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 14.85 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD AS DEDICATED BY THOSE CERTAIN DOCUMENTS RECORDED IN BOOK 931020 AS INSTRUMENT 01511 OF OFFICIAL RECORDS IN THE CLARK COUNTY, RECORDER’S OFFICE, CLARK COUNTY, NEVADA, FROM WHICH A LAS VEGAS BOULEVARD RIGHT-OF-WAY BRASS CAP NO. 029Y, AS SHOWN BY THAT CERTAIN MAP IN FILE 169, PAGE 20 OF SURVEYS IN CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEARS NORTH 31°42’48” EAST 217.60 FEET;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE FOLLOWING TWENTY THREE (23) COURSES;

 

1) SOUTH 28°49’54” WEST 8.60 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE WEST, HAVING A RADIUS OF 50.00 FEET, A CENTRAL ANGLE OF 52°41’26”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 66°21’08” EAST;

 

2) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 45.98 FEET;

 

3) THENCE SOUTH 29°02’34” WEST, 60.11 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE NORTHWEST, HAVING A RADIUS OF 50.00 FEET AND A CENTRAL ANGLE OF 07°07’30”;

 

4) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 6.22 FEET;

5) THENCE SOUTH 36°10’04” WEST, 87.41 FEET TO THE BEGINNING OF A TANGENT

CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 100.00 FEET AND A CENTRAL ANGLE OF 07°07’30”;

 

6) THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 12.44 FEET;

 

7) THENCE SOUTH 29°02’34” WEST, 146.78 FEET TO A POINT FROM WHICH A LAS VEGAS BOULEVARD RIGHT-OF-WAY BRASS CAP NO. 027Y, AS SHOWN BY THAT CERTAIN MAP IN FILE 169, PAGE 20 OF SURVEYS IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEARS NORTH 56°46’46” WEST 8.60 FEET AND THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 75.00 FEET AND A CENTRAL ANGLE OF 49°15’58”;

 

8) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 64.49 FEET;

 

9) THENCE SOUTH 11°41’28” EAST, 22.85 FEET;

 

10) THENCE SOUTH 24°39’16” WEST 29.31 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 210.00 FEET AND A CENTRAL ANGLE OF 04°36’48”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 24°39’17” EAST;

 

11) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 16.91 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 8.00 FEET, A CENTRAL ANGLE OF 86°03’20” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 29°16’06” EAST;

 

12) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.02 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4066.00 FEET, A CENTRAL ANGLE OF 03°11’04” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 64°40’34” WEST;

 

13) THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 225.98 FEET TO THE BEGINNING OF A NON-TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 1000.00 FEET, A CENTRAL ANGLE OF 05°04’14” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 67°51’39” WEST;

 

14) THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 88.50 FEET;

 

15) THENCE SOUTH 17°04’07” WEST, 271.00 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 4054.00 FEET AND A CENTRAL ANGLE OF 02°20’57”;

 

16)

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 166.22 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST,

  HAVING A RADIUS OF 8.00 FEET, A CENTRAL ANGLE OF 91°48’30” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 75°16’49” EAST;

 

17) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 12.82 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 200.00 FEET, A CENTRAL ANGLE OF 02°20’23” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 16°31’41” WEST;

 

18) THENCE ALONG SAID CURVE TO THE RIGHT AN ARCH LENGTH OF 8.17 FEET;

 

19) THENCE SOUTH 18°52’04” WEST 33.74 FEET;

 

20) THENCE SOUTH 45°12’14” WEST 19.51 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 61.24 FEET, A CENTRAL ANGLE OF 60°48’08” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 45°12’14” EAST;

 

21) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 64.99 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 248.30 FEET, A CENTRAL ANGLE OF 06°46’08” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 73°59’38” WEST;

 

22) THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 29.33 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 512.04 FEET, A CENTRAL ANGLE OF 02°59’41” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 80°45’46” EAST;

 

23) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 26.76 FEET;

THENCE DEPARTING SAID RIGHT-OF-WAY LINE, NORTH 88°44’46” WEST 138.91 FEET;

THENCE NORTH 88°51’07” WEST 1924.03 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 45.00 FEET, A CENTRAL ANGLE OF 44°33’49” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 45°13’22” WEST, SAID POINT BEING ON THE EAST RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE AND INDUSTRIAL ROADS AS DEDICATED IN DOCUMENT 940831:01339 OF OFFICIAL RECORDS IN THE CLARK COUNTY NEVADA RECORDER’S OFFICE;

THENCE ALONG SAID EAST RIGHT-OF-WAY LINE THE FOLLOWING NINE (9) COURSES:

 

1) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 35.00 FEET;

 

2) THENCE NORTH 00°12’49” WEST, 137.18 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 40.00 FEET AND A CENTRAL ANGLE OF 91°31’55”;

 

3) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 63.90 FEET;

4) THENCE NORTH 00°12’49” WEST 46.19 FEET;

 

5) THENCE NORTH 35°46’51” EAST 5.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 75.00 FEET, A CENTRAL ANGLE OF 68°15’46” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 35°46’42” WEST;

 

6) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 89.36 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 500.00 FEET, A CENTRAL ANGLE OF 04°42’30” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 75°57’32” WEST;

 

7) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 41.09 FEET TO THE BEGINNING OF A TANGENT COMPOUND CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 143.00 FEET, A CENTRAL ANGLE OF 08°20’29” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 71°15’02” WEST;

 

8) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 20.82 FEET;

 

9) THENCE NORTH 27°05’27” EAST, 389.60 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 6000.00 FEET, A CENTRAL ANGLE OF 00°28’42” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 63°51’57” WEST;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 0496:0399453 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, THE FOLLOWING THREE (3) COURSES:

 

1) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 50.09 FEET;

 

2) NORTH 27°37’16” EAST 228.55 FEET;

 

3) THENCE NORTH 89°12’43” WEST, 9.14 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 6000.00 FEET, A CENTRAL ANGLE OF 00°22’57” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 65°32’14” EAST, SAID POINT ALSO BEING ON THE EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN THE AFOREMENTIONED DOCUMENT 940831:01339 OF OFFICIAL RECORDS;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD THE FOLLOWING TWO (2) COURSES:

 

1) THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 40.06 FEET;

 

2) THENCE NORTH 24°04’49” EAST ALONG SAID RIGHT-OF-WAY, 142.71 FEET;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 940831:01338 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, THE FOLLOWING EIGHT (8) COURSES:

 

1) NORTH 24°06’50” EAST, 76.42 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 40.00 FEET AND A CENTRAL ANGLE OF 90°36’48”;

 

2) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 63.26 FEET;

 

3) THENCE NORTH 24°43’38” EAST 32.50 FEET;

 

4) THENCE NORTH 65°16’22” WEST 1.55 FEET;

 

5) THENCE NORTH 24°43’38” EAST 32.50 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 40.00 FEET, A CENTRAL ANGLE OF 89°23’12” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 24°43’38” WEST;

 

6) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 62.40 FEET;

 

7) THENCE NORTH 24°06’50” EAST 30.30 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 3000.00 FEET, A CENTRAL ANGLE OF 03°53’45” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 65°53’11” WEST;

 

8) THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 203.99 FEET;

THENCE CONTINUING ALONG SAID EAST RIGHT-OF-WAY LINE OF INDUSTRIAL ROAD AS DEDICATED IN DOCUMENT 900501:00870 OF OFFICIAL RECORDS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, NORTH 70°41’14” EAST, 17.49 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 35.00 FEET, A CENTRAL ANGLE OF 47°55’52” AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 70°40’14” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 29.28 FEET;

THENCE NORTH 28°36’06” EAST 257.71 FEET;

THENCE NORTH 27°38’40” EAST 227.58 FEET TO THE SOUTH RIGHT-OF-WAY LINE OF SPRING MOUNTAIN ROAD AS DEDICATED BY THOSE CERTAIN DOCUMENTS RECORDED IN BOOK 980415 OF OFFICIAL RECORDS AS INSTRUMENT NO. 00154 IN CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, BEING THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 30.00 FEET AND A CENTRAL ANGLE OF 67°45’49”;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 35.48 FEET; THENCE SOUTH 84°35’31” EAST, 337.34 FEET;

THENCE SOUTH 00°25’43” WEST 292.58 FEET TO THE RIGHT-OF-WAY LINE OF BLACK CANYON AVENUE AND THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 45.50 FEET, A CENTRAL ANGLE OF 73°47’02” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 66°18’24” WEST;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 58.59 FEET;

THENCE SOUTH 50°05’26” EAST, 24.08 FEET;

THENCE SOUTH 00°48’59” WEST, DEPARTING SAID RIGHT-OF-WAY LINE, 150.00 FEET TO THE NORTH RIGHT-OF-WAY LINE OF PERSHING AVENUE;

THENCE ALONG SAID RIGHT-OF-WAY LINE THE NEXT TWO (2) COURSES: SOUTH 65°38’25” WEST 7.82 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE EAST, HAVING A RADIUS OF 45.50 FEET AND A CENTRAL ANGLE OF 224°28’15”;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 178.26 FEET TO THE BEGINNING OF A TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 25.00 FEET, A CENTRAL ANGLE OF 69°47’28” AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 68°49’50” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 30.45 FEET;

THENCE SOUTH 89°11’01” EAST 61.01 FEET TO THE BEGINNING OF A TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 70.00 FEET AND A CENTRAL ANGLE OF 90°59’03”;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 111.16 FEET TO A POINT OF CUSP ON THE EAST RIGHT-OF-WAY LINE OF VEGAS PLAZA DRIVE AS SHOWN BY MAP THEREOF IN BOOK 46, PAGE 64 OF PLATS IN THE CLARK COUNTY, NEVADA RECORDER’S OFFICE;

THENCE SOUTH 00°12’48” EAST 39.29 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 21.50 FEET, A CENTRAL ANGLE OF 55°05’49”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 54°34’21” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 20.67 FEET;

THENCE SOUTH 88°49’38” EAST 99.04 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 449.10 FEET, A

CENTRAL ANGLE OF 04°47’17”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 11°59’48” EAST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 37.53 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 21.10 FEET, A CENTRAL ANGLE OF 49°21’12”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 16°49’25” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 18.18 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 10.70 FEET, A CENTRAL ANGLE OF 27°53’16”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 32°29’52” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 5.21 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 12.70 FEET, A CENTRAL ANGLE OF 23°06’26”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 04°37’48” EAST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 5.12 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 68.60 FEET, A CENTRAL ANGLE OF 41°03’53”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 13°26’43” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 49.17 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 52.50 FEET, A CENTRAL ANGLE OF 43°00’24”, AND A POINT TO WHICH A RADIAL LINE BEARS SOUTH 23°03’16” WEST;

THENCE ALONG SAID CURVE TO THE LEFT AN ARC LENGTH OF 39.41 FEET TO THE BEGINNING OF A NON-TANGENT REVERSE CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 177.80 FEET, A CENTRAL ANGLE OF 19°15’45”, AND A POINT TO WHICH A RADIAL LINE BEARS NORTH 15°57’04” WEST;

THENCE ALONG SAID CURVE TO THE RIGHT AN ARC LENGTH OF 59.78 FEET;

THENCE SOUTH 88°48’48” EAST 117.50 FEET;

THENCE SOUTH 63°50’11” EAST 23.91 FEET TO THE POINT OF BEGINNING.

PARCEL IV:

PERPETUAL NON-EXCLUSIVE EASEMENTS FOR VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS AS SET FORTH IN THAT CERTAIN “DECLARATION OF RECIPROCAL EASEMENTS AND OPTION TO PURCHASE TENANCY-IN-COMMON INTEREST”, RECORDED MARCH 20, 2009 IN BOOK 20090320 AS DOCUMENT NO. 00883, OFFICIAL RECORDS.

Property commonly known as New York-New York Hotel & Casino, described as follows:

LEGAL DESCRIPTION

PARCEL I:

THAT PORTION OF THE NORTH HALF (N  1 ⁄ 2 ) OF THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M., DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT IN THE WESTERLY BOUNDARY OF U.S. HIGHWAY NO. 91, FROM WHICH THE SOUTHEAST CORNER OF SAID SECTION 20 BEARS SOUTH 10°35’48” EAST, A DISTANCE OF 822.32 FEET, SAID POINT BEING THE SOUTHEAST CORNER OF THAT PARCEL OF LAND CONVEYED TO MICHELE TERLIZZI, ET AL, BY DEED RECORDED JULY 30, 1953 AS DOCUMENT NO. 410028 OF CLARK COUNTY, NEVADA RECORDS; THENCE SOUTH 89°58’00” WEST, ALONG THE SOUTH LINE OF SAID PARCEL, 600.00 FEET; THENCE ALONG THE SOUTHERLY PROLONGATION OF THE WEST LINE OF SAID PARCEL SOUTH 0°02’00” EAST, 156.56 FEET, MORE OR LESS, TO A POINT IN THE SOUTHERLY BOUNDARY LINE OF THAT PARCEL OF LAND CONVEYED TO MAJOR A. RIDDLE, ET AL, BY DEED RECORDED DECEMBER 30, 1960 AS DOCUMENT NO. 222929 OF OFFICIAL RECORDS OF SAID COUNTY; THENCE ALONG SAID SOUTHERLY BOUNDARY LINE NORTH 89°58’00” EAST (NORTH 89 ° 34’07” EAST MEASURED), 600.02 FEET, MORE OR LESS, TO A POINT IN THE AFOREMENTIONED WEST LINE OF U.S. HIGHWAY NO. 91; THENCE ALONG SAID LAST MENTIONED WEST LINE NORTH 0°02’00” WEST, 152.39 FEET, MORE OR LESS, TO THE POINT OF BEGINNING.

AS DISCLOSED ON THAT CERTAIN RECORD OF SURVEY IN FILE 73 OF SURVEYS, PAGE 82 AND ALSO SHOWN ON THE REVISED RECORD OF SURVEY IN FILE 75, PAGE 15.

PARCEL II:

THAT PORTION OF SECTIONS 20 AND 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M., MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE NORTHEAST CORNER OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SAID SECTION 29; THENCE SOUTH 89°03’00” WEST ALONG THE NORTH LINE THEREOF A DISTANCE OF 150.29 FEET TO A POINT ON THE WESTERLY RIGHT OF WAY LINE OF LAS VEGAS BOULEVARD SOUTH (U.S. HIGHWAY 91-93-466) SAID POINT BEING THE TRUE POINT OF BEGINNING;

THENCE SOUTH 00°17’00” EAST ALONG SAID WESTERLY RIGHT OF WAY LINE A DISTANCE OF 13.15 FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 93.50 FEET; THENCE FROM A RADIAL LINE THAT

BEARS SOUTH 45°06’47” EAST, SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 44°08’00” AN ARC LENGTH OF 72.02 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF SR-593 (TROPICANA AVENUE); THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY LINE THE FOLLOWING TWO COURSES AND DISTANCES: SOUTH 89°01’13” WEST A DISTANCE OF 232.78 FEET; THENCE NORTH 86°24’21” WEST A DISTANCE OF 85.27 FEET TO A POINT ON THE RIGHT OR EASTERLY RIGHT-OF-WAY LINE OF IR-15 FREEWAY 1797.84 FEET RIGHT OF AND AT RIGHT ANGLES TO HIGHWAY ENGINEER’S STATION “B1’ 205+31.46 P.O.T.; THENCE ALONG SAID RIGHT-OF-WAY LINE THE FOLLOWING NINE COURSES AND DISTANCES: CONTINUING NORTH 86°24’21” WEST A DISTANCE OF 65.21 FEET; THENCE SOUTH 89°01’13” WEST A DISTANCE OF 178.50 FEET TO A POINT ON A TANGENT CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 35.50 FEET; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 43°20’30” AN ARC LENGTH OF 26.85 FEET TO A POINT ON A TANGENT COMPOUND CURVE CONCAVE TO THE NORTHEAST HAVING A RADIUS OF 13.50 FEET; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 10°19’02” AN ARC LENGTH OF 2.43 FEET; THENCE SOUTH 89°01’13” WEST A DISTANCE OF 54.25 FEET TO A POINT ON A NON-TANGENT CURVE CONCAVE TO THE NORTHWEST HAVING A RADIUS OF 49.50 FEET; THENCE FROM A RADIAL LINE THAT BEARS SOUTH 67°08’56” EAST, SOUTHWESTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 66°10’09” AN ARC LENGTH OF 57.17 FEET; THENCE SOUTH 89°01’13” WEST A DISTANCE OF 181.02 FEET; THENCE NORTH 00°58’47” WEST A DISTANCE OF 46.02 FEET TO A POINT ON THE NORTH LINE OF THE AFOREMENTIONED NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SECTION 29; THENCE SOUTH 89°03’00” WEST A DISTANCE OF 175.55 FEET TO THE SOUTHWEST CORNER OF THE SOUTH HALF (S  1 ⁄ 2 ) OF THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20; THENCE NORTH 00°06’17” EAST ALONG THE WEST LINE THEREOF A DISTANCE OF 667.98 FEET TO AN ANGLE POINT IN THE PROPERTY LINE DESCRIBED IN THE DEED FROM W.D. CLOSE, ET AL TO MAJOR A. RIDDLE, ET AL., RECORDED IN BOOK 275, DOCUMENT NUMBER 222926, DECEMBER 11, 1961, OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA; THENCE NORTH 89°30’50” EAST ALONG THE NORTH LINE THEREOF A DISTANCE OF 1106.46 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF THE AFOREMENTIONED LAS VEGAS BOULEVARD SOUTH (U.S. HIGHWAY 91-93-466);

THENCE SOUTH 00°02’00” EAST ALONG SAID WESTERLY RIGHT-OF-WAY LINE A DISTANCE OF 557.86 FEET TO AN ANGLE POINT IN SAID WESTERLY RIGHT-OF-WAY LINE; THENCE SOUTH 00°17’00” EAST ALONG SAID WESTERLY RIGHT-OF-WAY LINE A DISTANCE OF 101.12 FEET TO THE TRUE POINT OF BEGINNING.

TOGETHER WITH THAT PORTION OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF THE NORTHEAST QUARTER (NE   1 ⁄ 4 ) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

COMMENCING AT THE NORTHEAST CORNER OF SAID SECTION 29; THENCE SOUTH 88°59’00” WEST ALONG THE NORTH LINE OF SAID NORTHEAST QUARTER (NE  1 ⁄ 4 ) A DISTANCE OF 776.46 FEET; THENCE SOUTH 1°02’47” EAST (BEING A RADIAL BEARING) A DISTANCE OF 27.06 FEET TO THE NORTH LINE OF TROPICANA AVENUE, ALSO BEING THE TRUE POINT OF BEGINNING 91.32 FEET RIGHT OF (“BRI” 84+43.50 P.O.T.); THENCE NORTHWESTERLY 26.85 FEET ALONG A CURVE CONCAVE NORTHEASTERLY THROUGH A CENTRAL ANGLE OF 43°20’30” HAVING A RADIUS OF 35.50 FEET TO A POINT OF COMPOUND CURVE; THENCE CONTINUING NORTHWESTERLY 2.43 FEET ALONG A CURVE CONCAVE NORTHEASTERLY THROUGH A CENTRAL ANGLE OF 10°19’05” HAVING A RADIUS OF 13.50 FEET; THENCE SOUTH 88°57’13” WEST A DISTANCE OF 54.25 FEET; THENCE SOUTH 82°14’19” EAST A DISTANCE OF 75.11 FEET; THENCE NORTH 88°57’13” EAST A DISTANCE OF 6.00 FEET TO THE POINT OF BEGINNING.

EXCEPTING FROM PARCEL II THOSE PORTIONS DEEDED TO THE STATE OF NEVADA, ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION, BY DEEDS RECORDED JULY 29, 1997 IN BOOK 970729 AS DOCUMENT NUMBERS 00025 AND 00027 AND DESCRIBED AS FOLLOWS:

A PORTION OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT ON THE NORTH LINE OF SAID NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ), SOUTH 88°59’00” WEST A DISTANCE OF 982.96 FEET FROM THE NORTHEAST CORNER OF SAID SECTION 29; THENCE CONTINUING SOUTH 88°59’00” WEST ALONG SAID NORTH LINE AND NORTHERLY LINE OF TROPICANA AVENUE, A DISTANCE OF 100.02 FEET TO A POINT 118.54 FEET RIGHT OF STATION 87+50.02 FEET P.O.T. OF “BRI” LINE; THENCE ALONG THE FORMER NORTHERLY LINE OF TROPICANA AVENUE SOUTH 1°02’59” EAST A DISTANCE OF 45.22 FEET; THENCE CONTINUING ALONG SAID FORMER NORTHERLY LINE NORTH 88°57’13” EAST A DISTANCE OF 181.02 FEET;

THENCE CONTINUING ALONG SAID FORMER NORTHERLY LINE 57.17 FEET ALONG A CURVE CONCAVE NORTHWESTERLY, THROUGH A CENTRAL ANGLE OF 66°10’09” HAVING A RADIUS OF 49.50 FEET; THENCE ALONG THE NORTHERLY LINE OF TROPICANA AVENUE NORTH 83°58’25” WEST A DISTANCE OF 127.25 FEET TO THE POINT OF BEGINNING;

AND

COMMENCING AT THE NORTHEAST CORNER OF SECTION 29; THENCE SOUTH 88°59’00” WEST ALONG THE NORTH LINE OF SAID NORTHEAST QUARTER (NE  1 ⁄ 4 ) A DISTANCE OF 362.88 FEET; THENCE SOUTH 1°01’00” EAST A DISTANCE OF 38.85 FEET TO THE TRUE POINT OF BEGINNING ALSO BEING ON THE NORTH LINE OF TROPICANA AVENUE, STATION 80+29.93, 79.32 FEET RIGHT “BRI” LINE; THENCE SOUTH 88°57’13” WEST ALONG SAID NORTH LINE A DISTANCE OF 85.07 FEET; THENCE CONTINUING ALONG SAID NORTH LINE NORTH 86°28’21” WEST A DISTANCE OF 138.86 FEET; THENCE NORTH 87°25’34” EAST A DISTANCE OF 41.71 FEET; THENCE NORTHEASTERLY 1.49 FEET ALONG A CURVE CONCAVE SOUTHEASTERLY THROUGH A CENTRAL ANGLE OF 01°31’37” HAVING A RADIUS OF 56.00 FEET; THENCE NORTH 88°57’13” EAST A DISTANCE OF 105.07 FEET; THENCE SOUTHEASTERLY 9.61 FEET ALONG A CURVE CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 09°50’05” HAVING A RADIUS OF 56.00 FEET; THENCE SOUTH 81°12’43” EAST A DISTANCE OF 66.64 FEET TO THE POINT OF BEGINNING.

ALSO EXCEPTING FROM PARCEL II ANY PORTION DEEDED TO THE STATE OF NEVADA, ACTING BY AND THROUGH ITS DEPARTMENT OF TRANSPORTATION, BY DEED RECORDED AUGUST 2, 1990 IN BOOK 900802 AS DOCUMENT NO. 00475 OF OFFICIAL RECORDS.

FURTHER EXCEPTING THEREFROM THAT PORTION OF SAID LAND AS DESCRIBED IN DEED RECORDED FEBRUARY 22, 2006 IN BOOK 20060222 AS DOCUMENT NO. 0001360 OF OFFICIAL RECORDS.

TOGETHER WITH THAT PORTION OF SAID LAND AS DESCRIBED IN DEED RECORDED FEBRUARY 22, 2006 IN BOOK 20060222 AS DOCUMENT NO. 0001361 OF OFFICIAL RECORDS.

TOGETHER WITH THAT PORTION OF SAID LAND AS ABANDONED BY THAT CERTAIN RESOLUTION OF ABANDONMENT RECORDED FEBRUARY 22, 2006 IN BOOK 20060222 AS DOCUMENT NO. 01365 OF OFFICIAL RECORDS.

AS DISCLOSED ON THAT CERTAIN RECORD OF SURVEY IN FILE 73 OF SURVEYS, PAGE 82 AND ALSO SHOWN ON THE REVISED RECORD OF SURVEY IN FILE 75, PAGE 15.

AS SURVEYED DESCRIPTION OF PARCELS I AND II IS AS FOLLOWS:

THAT PORTION OF THE NORTH HALF (N 1/2) OF THE SOUTHEAST QUARTER (SE 1/4) OF THE SOUTHEAST QUARTER (SE 1/4) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M., DESCRIBED AS FOLLOWS:

BEGINNING AT A POINT IN THE WESTERLY BOUNDARY OF U.S. HIGHWAY NO. 91, FROM WHICH THE SOUTHEAST CORNER OF SAID SECTION 20 BEARS SOUTH 10°35’48” EAST, A DISTANCE OF 822.32 FEET, SAID POINT BEING THE SOUTHEAST CORNER OF

THAT PARCEL OF LAND CONVEYED TO MICHELE TERLIZZI, ET AL, BY DEED RECORDED JULY 30, 1953 AS DOCUMENT NO. 410028 OF CLARK COUNTY, NEVADA RECORDS; THENCE ALONG SAID WESTERLY BOUNDARY, SOUTH 00°02’00” EAST, A DISTANCE OF 582.78 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 19.08 FEET; THENCE SOUTH 00°21’37” EAST, A DISTANCE OF 176.33 FEET; TO THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 92.79 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 89°55’46” EAST; THENCE SOUTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 39°49’03”, AN ARC LENGTH OF 64.48 FEET TO THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 92.79 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 52°21’43” EAST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 48°18’37”, AN ARC LENGTH OF 78.24 FEET TO THE NORTHERLY RIGHT OF WAY OF TROPICANA AVENUE; THENCE ALONG SAID RIGHT OF WAY, SOUTH 88°52’29” WEST, A DISTANCE OF 117.46 FEET; THENCE NORTH 89°43’13” WEST, A DISTANCE OF 23.67 FEET; THENCE NORTH 84°28’47” WEST, A DISTANCE OF 13.47 FEET; THENCE NORTH 80°46’50” WEST, A DISTANCE OF 25.42 FEET; THENCE NORTH 81°15’36” WEST, A DISTANCE OF 30.18 FEET; THENCE NORTH 86°02’52” WEST, A DISTANCE OF 10.76 FEET; THENCE NORTH 03°57’08” EAST, A DISTANCE OF 3.18 FEET; THENCE SOUTH 89°02’07” WEST, A DISTANCE OF 105.94 FEET; THENCE SOUTH 87°31’50” WEST, A DISTANCE OF 43.20 FEET; THENCE NORTH 86°23’47” WEST, A DISTANCE OF 11.62 FEET; THENCE SOUTH 89°01’55” WEST, A DISTANCE OF 178.50 FEET; THENCE SOUTH 89°17’11” WEST, A DISTANCE OF 5.98 FEET; THENCE NORTH 82°10’59” WEST, A DISTANCE OF 75.12 FEET; THENCE NORTH 83°30’57” WEST, A DISTANCE OF 126.97 FEET; THENCE SOUTH 89°03’52” WEST, A DISTANCE OF 275.95 FEET; THENCE DEPARTING SAID RIGHT OF WAY OF TROPICANA AVENUE, AND ALONG THE BOUNDARY LINE OF LOT 1 OF VICTORIA PARTNERS COMMERCIAL SUBDIVISION, A COMMERCIAL SUBDIVISION RECORDED IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, NORTH 00°08’05” EAST, A DISTANCE OF 667.93 FEET; THENCE NORTH 89°34’07” EAST, A DISTANCE OF 508.11 FEET; THENCE NORTH 00°02’00” WEST, A DISTANCE OF 156.56 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 600.00 FEET TO THE POINT OF BEGINNING.

(THE ABOVE ‘AS SURVEYED’ DESCRIPTION WAS PREPARED BY GLEN J. DAVIS, PLS 11823, OF LOCHSA SURVEYING, 6345 S. JONES BLVD., SUITE 200, LAS VEGAS, NV 89118)

PARCEL III:

A NON-EXCLUSIVE EASEMENT FOR THE INSTALLATION, MAINTENANCE AND UTILIZATION OF CHILLED WATER, AND HEATED WATER SYSTEMS AS EVIDENCED BY THAT CERTAIN “CENTRAL PLANT EASEMENT AGREEMENT FOR NEW YORK – NEW YORK” RECORDED JANUARY 6, 2016 AS INSTRUMENT 20160106-0000888 OF OFFICIAL RECORDS.

PARCEL IV:

A PERMANENT, NON-EXCLUSIVE EASEMENT FOR VEHICLE AND PEDESTRIAN INGRESS AND EGRESS AS SET FORTH IN INSTRUMENT ENTITLED “NEW YORK - NEW YORK PARKING AND ACCESS AND EASEMENT AGREEMENT BY AND BETWEEN NEW YORK – NEW YORK HOTEL & CASINO, LLC AND ARENA LAND HOLDINGS, LLC” RECORDED MARCH 10, 2016 AS INSTRUMENT NO. 20160310-0002185 AND RE-RECORDED March 24, 2016 AS INSTRUMENT NO. 20160324-0002872 OF OFFICIAL RECORDS OF OFFICIAL RECORDS.

Property commonly known as MGM Grand Detroit Hotel and Casino, described as follows:

LEGAL DESCRIPTION

Real property in the City of Detroit, County of Wayne, State of Michigan, described as follows:

Part of Private Claims 23, 55, and 247, City of Detroit, Wayne County, Michigan, described as: Part of Lots 1 thru 7 of Block 57, part of Lots 1 thru 6 of Block 64, part of Lots 1 thru 6 of Block 69, of “Cass Western Addition to the City of Detroit, between the Chicago and Grand River Roads, by Lewis Cass 1851”, as recorded in Liber 42, Pages 138 thru 141 of Deeds, Wayne County Records; part of Lot 8 and all of Lot 9 of Block 57, part of Lots 1 thru 4, and all of Lots 5 and 6 of Block 61, all of Lots 7 and 8 of Block 64, part of Lots 1 thru 6, and all of Lots 7 and 8 of Block 67, all of Lots 7 and 8 of Block 69, of “Plat of Subdivision of Blocks 52, 61, 67 and part of Blocks 57, 64, 69, and 71 of the Cass Farm” as recorded in Liber 1, Page 128A of Plats, Wayne County Records; also all of Lots 1 thru 6, and all of Lots 10 and 11, and part of Lots 7 thru 9 of Block 55, all of Lots 1 thru 8 of Block 56, all of Lots 1 thru 8 Block 57, all of Lots 7 thru 15, and part of Lots 1 thru 6 of Block 54, of “Plat of the Subdivision of the Jones’ Farm between Michigan Avenue and the North line of Beech Street”, as recorded in Liber 53, Page 53 of Deeds, Wayne County Records; also all of Lots 1 thru 10 of Block 58, all of Lots 1 thru 10 of Block 59, all of Lots 1 thru 10 of Block 60, all of Lots 1 thru 10 of Block 61, all of Lots 2 thru 8, and part of Lots 1, 9, and 10 of Block 62, all of Lots 1 thru 10 of Block 63 of “Plat of Subdivision of the Jones’ Farm South of the Grand River Road”, as recorded in Liber 1, Page 184 of Plats, Wayne County Records; also all of Lots 8 thru 12, and part of Lots 1 thru 7 of Block 1, all of Lots 11 and 12, and part of Lot 10 of Block 2, all of Lot 3, all of Lots 5 thru 8, and part of Lots 1, 2, and 4 of Block 3, all of Lots 1 thru 8 of Block 4, all of Lots 1 thru 9 of Block 5, all of Lots 2 thru 9, and part of Lot 1 of Block 6, all of Lots 4 and 5, and part of Lots 2 and 3, and part of Lots 6 thru 9 of Block 7, all of Lots 1 thru 9 of Block 8, all of Lots 1, 4, and 5, and part of Lots 2 and 3, and part of Lots 6 thru 8 of Block 9, part of Lot 5 of Block 10 of “Crane and Wesson’s Section of the Forsyth Farm between Chicago and Grand River Roads”, as recorded in Liber 44, Pages 10 and 11, of Deeds, Wayne County Records; also Elton Park, vacated Fourth, Fifth, Beech, Elizabeth & Plum Streets, and Plaza Drive; also all of the alleys, all within the bounds of the more particularly described parcel:

Beginning at a point distant South 67 degrees 04 minutes 00 seconds West 38.00 feet from the Northerly corner of Lot 1 of Block 69 of “Cass Western Addition to the City of Detroit” as recorded in Liber 42, Pages 138-141 of Deeds, Wayne County Records, being also the intersection of the Westerly line of Third Avenue (variable width) and the Southerly line of the South Bound Fisher Service Drive (variable width) and proceeding thence South 22 degrees 56 minutes 00 seconds East 323.50 feet along the Westerly line of Third Avenue; thence North 67 degrees 04 minutes 00 seconds East 12.00 feet; thence South 22 degrees 56 minutes 00 seconds East 254.62 feet, along the Westerly line of Third Avenue; thence South 67 degrees 04 minutes 00 seconds West 10.50 feet; thence South 22 degrees 56 minutes 00 seconds East 327.03 feet, along the Westerly line of Third Avenue; thence North 67 degrees 04 minutes 00 seconds East 10.50 feet; thence South 22 degrees 56 minutes 00 seconds East 250.35 feet along the Westerly line of Third Avenue; thence South 67 degrees 04 minutes 00 seconds West 12.00 feet; thence South 22 degrees 56 minutes 00 seconds East 218.50 feet along the Westerly line of Third Avenue; thence South 67 degrees 04 minutes 00 seconds West 95.05 feet along the Northerly line of Bagley Avenue (variable width); thence North 22 degrees 56 minutes 00 seconds West 8.00 feet; thence South 67 degrees 04 minutes 00 seconds West 190.00 feet along the Northerly line of Bagley Avenue; thence South 71 degrees 38 minutes 09 seconds West

50.16 feet; thence South 89 degrees 50 minutes 52 seconds West 368.44 feet; thence North 83 degrees 53 minutes 39 seconds West 57.19 feet; thence South 82 degrees 26 minutes 40 seconds West 72.31 feet; thence North 83 degrees 37 minutes 39 seconds West 23.54 feet; thence North 23 degrees 24 minutes 01 seconds West 66.89 feet; thence North 59 degrees 04 minutes 20 seconds West 49.52 feet; thence North 33 degrees 33 minutes 11 seconds West 162.79 feet; thence North 40 degrees 40 minutes 41 seconds West 52.50 feet; thence North 22 degrees 56 minutes 00 seconds West 96.00 feet; thence South 67 degrees 04 minutes 00 seconds West 4.00 feet; thence North 22 degrees 56 minutes 00 seconds West 152.00 feet; thence North 14 degrees 17 minutes 30 seconds West 50.90 feet; thence North 17 degrees 12 minutes 04 seconds West 75.57 feet; thence North 05 degrees 05 minutes 55 seconds West 31.51 feet; thence North 04 degrees 38 minutes 20 seconds West 48.35 feet; thence North 07 degrees 12 minutes 29 seconds East 71.72 feet; thence North 08 degrees 18 minutes 11 seconds East 40.42 feet; thence North 17 degrees 01 minutes 52 seconds East 65.24 feet; thence North 18 degrees 41 minutes 24 seconds East 46.82 feet; thence North 27 degrees 42 minutes 54 seconds East 64.66 feet; thence North 32 degrees 04 minutes 41 seconds East 13.95 feet; thence North 32 degrees 04 minutes 27 seconds East 95.91 feet; thence North 41 degrees 49 minutes 22 seconds East 44.22 feet; thence North 41 degrees 50 minutes 04 seconds East 44.22 feet; thence North 38 degrees 54 minutes 08 seconds East 68.06 feet; thence North 47 degrees 25 minutes 07 seconds East 116.48 feet; thence North 67 degrees 04 minutes 00 seconds East 335.05 feet, along the Southerly line of the South Bound Fisher Service Drive to the point of beginning.

Property commonly known as Gold Strike Resort and Casino, described as follows:

LEGAL DESCRIPTION

Real property in the City of Tunica, County of Tunica, State of Mississippi, described as follows:

Being a description the Circus Circus Mississippi, Inc. 23.989 acre tract of land lying in Sections 2, and 11, Township Three South, Range Eleven West, Tunica County, Mississippi, of record in Book B5, Page 125 at the Tunica County Clerk’s Office, and being more particularly described as follows:

Commencing at the section corner between Sections 1,2,11 and 12, Township Three South, Range Eleven West Tunica County, Mississippi; Thence S00°00’06”E along the East line of said Section 11 a distance of 115.73 feet to a point on the North line of the Yazoo-Mississippi Delta Levee Board right-of-way; Thence S74°46’53”W along said Levee Board right-of-way a distance of 1439.74 feet to the point of beginning; Thence continuing S74°46’53”W along said Levee Board right-of-way a distance of 540.17 feet to a angle point; Thence S68°17’02”W and continuing along said Levee Board right-of-way a distance of 544.92 feet to a point; Thence leaving said Levee Board right-of-way N64°07’06”W a distance of 249.87 feet to a point on the East line of James Neely Grant III Property; Thence N00°04’52”W along the said east line of the Grant Property a distance of 719.37 feet to the Northeast corner of the said Grant Property; Thence continuing N00°04’52”W a distance of 213.36 feet to a point; Thence the following courses and distances through the Robinson Property Group L.P. Property as recorded in Book V4, Page 16 at said Clerks Office; N 22°31’05” W 142.42’; and N 67°28’55” E 223.71’ to a point on a curve; Thence along a curve to the right having a radius of 175.00 feet, an arc length of 100.06 feet (chord N23°22’46”E - 98.70 feet) to a point of tangency; Thence N 39°45’35” E 194.79’; S 58°17’44” E 180.67’; N 32°45’52” E 81.00’; S 57°14’08” E 192.00’; S 32°45’52” W 72.00’; S 57°14’08” E 228.13’; S 15°14’08” E 133.31’; S 74°45’52” W 50.00’; S 15°14’08” E 153.74’ to a point on a curve; Thence along a curve to the left having a radius of 599.00 feet an arc length of 180.63 feet (chord S50°50’14”W - 179.95 feet) to a point; Thence S15°13’07”E a distance of 489.42 feet to a point; Thence N74°46’53”E a distance of 404.49 feet to a point; Thence S15°13’07”E a distance of 74.00 feet to the point of beginning and containing 1,044,976 square feet or 23.989 acres.

Property commonly known as the Beau Rivage Hotel and Casino, described as follows:

Real property in the City of Biloxi, County of Harrison, State of Mississippi, described as follows:

A PARCEL OF LAND SITUATED WITHIN FRACTIONAL SECTION 27 (OR THE ANGELIQUE FASIAR CLAIM), TOWNSHIP 7 SOUTH, RANGE 9 WEST, WITHIN THE CITY OF BILOXI, SECOND JUDICIAL DISTRICT OF HARRISON COUNTY, STATE OF MISSISSIPPI, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

PARCEL 1A (FEE SIMPLE PARCEL)

COMMENCING AT A CONCRETE RIGHT-OF-WAY MONUMENT FOUND AT THE INTERSECTION OF THE NORTH MARGIN OF HIGHWAY 90 AND THE EAST MARGIN OF INTERSTATE 110; THENCE S07°37’00”E 136.12 FEET TO AN “X”-MARK SCRIBED IN CONCRETE AT THE POINT OF BEGINNING; THENCE S85°39’13”E 103.16 FEET TO A “X”-MARK SCRIBED IN CONCRETE; THENCE ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 2,241.83 FEET, AN ARC LENGTH OF 257.48 FEET, AND A CHORD BEARING AND DISTANCE BEING S82°21’48”E 257.34 FEET TO AN “X”-MARK SCRIBED IN CONCRETE; THENCE N00°40’25”W 22.96 FEET TO A MAG NAIL SET; THENCE ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 2,264.33 FEET, AN ARC LENGTH OF 127.24 FEET, AND A CHORD BEARING AND DISTANCE BEING S77°34’48”E 127.22 FEET TO A MAG NAIL SET; THENCE S75°58’13”E 11.16 FEET TO A MAG NAIL SET; THENCE ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 5,702.08 FEET, AN ARC LENGTH OF 169.18 FEET, AND A CHORD BEARING AND DISTANCE BEING S75°07’13”E 169.18 FEET TO A MAG NAIL SET; THENCE S74°16’12”E 706.73 FEET TO A FOUND “X”-MARK SCRIBED IN CONCRETE; THENCE S01°04’07”E 252.66 FEET TO A FOUND “X”-MARK SCRIBED IN CONCRETE; THENCE S01°55’29”W 92.41 FEET TO A FOUND “X”-MARK SCRIBED IN CONCRETE; THENCE S89°32’22”W 124.45 FEET TO A POINT; THENCE N89°36’56”W 802.41 FEET TO A “X”-MARK SCRIBED IN CONCRETE; THENCE N00°22’23”E 90.01 FEET TO A “X”-MARK SCRIBED IN CONCRETE; THENCE S89°33’28”W 359.71 FEET TO A POINT; THENCE N00°00’51”W 136.79 FEET TO AN “X”-MARK SCRIBED IN CONCRETE; THENCE N77°05’17”W 14.68 FEET TO A POINT; THENCE N60°55’13”W 32.09 FEET TO AN “X”-MARK SCRIBED IN CONCRETE; THENCE N01°27’47”W 381.97 FEET TO THE POINT OF BEGINNING. SAID PARCEL CONTAINS 14.75± ACRES.

LESS AND EXCEPT ANY PORTION LYING WITHIN U.S. HIGHWAY 90.

AND ALSO;

PARCEL 2A (PUBLIC BEACH PARCEL)

A PARCEL OF LAND SITUATED WITHIN FRACTIONAL SECTION 27 (OR THE ANGELIQUE FASIAR CLAIM), TOWNSHIP 7 SOUTH, RANGE 9 WEST, WITHIN THE CITY OF BILOXI, SECOND JUDICIAL DISTRICT OF HARRISON COUNTY, STATE OF MISSISSIPPI, MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT A CONCRETE MONUMENT FOUND AT THE INTERSECTION OF THE NORTH MARGIN OF HIGHWAY 90 AND THE EAST MARGIN OF INTERSTATE 110; THENCE S07°37’00“E 136.12 FEET TO AN “X”-MARK SCRIBED IN CONCRETE; THENCE S01°27’47“E 309.39 FEET TO A POINT; THENCE N67°13’54“W 212.17 FEET TO A POINT LYING ON THE EAST MARGIN OF INTERSTATE 110; THENCE ALONG THE EAST MARGIN OF INTERSTATE 110, N34°30’42“E 147.08 FEET TO A POINT; THENCE CONTINUE ALONG THE EAST MARGIN OF INTERSTATE 110, N24°17’59“E 107.81 FEET TO A POINT; THENCE N16°13’57“E 149.18 FEET TO THE POINT OF BEGINNING. SAID PARCEL CONTAINS 0.9± ACRES.

AND ALSO;

PUBLIC TRUST TIDELANDS LEASE BEING RECORDED IN DEED BOOK 336 PAGE 420 (VERBATIM)

LEASE PARCEL

A PARCEL OF LAND SITUATED IN THE CITY OF BILOXI, SECOND JUDICIAL DISTRICT, HARRISON COUNTY, MISSISSIPPI, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS, TO WIT:

COMMENCE AT A CONCRETE MONUMENT DENOTING THE INTERSECTION OF THE NORTH MARGIN OF U.S. HIGHWAY 90 WITH THE EAST MARGIN OF I-110 LOOP; THENCE RUN SOUTH 07°06’47” EAST, FOR A DISTANCE OF 148.69 FEET TO A POINT; THENCE RUN SOUTH 01°29’12” EAST, FOR A DISTANCE OF 369.79 FEET TO THE POINT OF BEGINNING; THENCE RUN SOUTH 60°54’54” EAST, FOR A DISTANCE OF 32.09 FEET TO A POINT; THENCE RUN SOUTH 77°05’04” EAST, FOR A DISTANCE OF 14.68 FEET TO A POINT; THENCE RUN SOUTH 0°00’00” EAST, FOR A DISTANCE OF 136.77 FEET TO A POINT; THENCE RUN NORTH 89°33’38” EAST, FOR A DISTANCE OF 359.69 FEET TO A POINT; THENCE RUN SOUTH 0°23’14” WEST FOR A DISTANCE OF 90.0 FEET TO A POINT; THENCE RUN SOUTH 89°36’46” EAST, FOR A DISTANCE OF 803.37 FEET TO A POINT; THENCE RUN NORTH 89°32’32” EAST, FOR A DISTANCE OF 36.95 FEET TO A POINT; THENCE SOUTH 0°22’47” WEST, FOR A DISTANCE OF 343.89 FEET TO A POINT; THENCE RUN NORTH 89°36’46” WEST, FOR A DISTANCE OF 732.82 FEET TO A POINT; THENCE RUN NORTH 83°38’45” WEST, FOR A DISTANCE OF 495.89 FEET TO A POINT; THENCE RUN NORTH 01°29’12” WEST, FOR A DISTANCE OF 532.25 FEET TO THE POINT OF BEGINNING, CONTAINING 450,000 SQUARE FEET, OR 10.33 ACRES, APPROXIMATELY.

TOGETHER WITH ALL RIGHTS OF LESSEE DESCRIBED IN THE “CONTINGENT PUBLIC TRUST TIDELANDS LEASE OF SURFACE LANDS” AS RECORDED IN DEED BOOK 330, PAGE 142 AND AS MODIFIED BY ASSIGNMENT OF LESSEE’S INTEREST RECORDED IN BOOK     , PAGE     .

Property commonly known as Mandalay Bay (Parcel I) and Mandalay Place (Parcel II), described as follows:

PARCEL I: (APN: 162-29-710-002)

A PORTION OF PARCEL 2 AS SHOWN IN THAT CERTAIN FINAL MAP TITLED “MANDALAY MILE SOUTH, A COMMERCIAL SUBDIVISION” RECORDED IN BOOK 110, PAGE 38 OF PLATS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, LYING WITHIN A PORTION OF THE EAST HALF (E  1 ⁄ 2 ) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M, CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

BEGINNING AT THE NORTHWEST CORNER OF SAID PARCEL 2, BEING A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF MADALAY BAY ROAD; THENCE ALONG THE NORTHERLY LINE OF SAID PARCEL 2 AND SAID SOUTHERLY RIGHT-OF-WAY, THE FOLLOWING TEN (10) COURSES:

 

  1) NORTH 89°59’12” EAST, 110.89 FEET TO THE BEGINNING OF A NON-TANGENT CURVE CONCAVE TO THE NORTH , HAVING A RADIUS OF 1422.00 FEET, FROM WHICH BEGINNING THE RADIUS BEARS NORTH 00°19’32” EAST;

 

  2) NORTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 05°38’36”, AN ARC LENGTH OF 140.06 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE TO THE SOUTH, HAVING A RADIUS OF 343.00 FEET, THROUGH WHICH A RADIAL LINE BEARS SOUTH 05°19’04” EAST;

 

  3) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 09°34’16”, AN ARC LENGTH OF 57.30 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 207.00 FEET, THROUGH WHICH A RADIAL LINE BEARS NORTH 04°15’12” EAST;

 

  4) NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 13°19’52”, AN ARC LENGTH OF 48.16 FEET;

 

  5) NORTH 80°55’20” EAST, 229.65 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE SOUTHWEST , HAVING A RADIUS OF 24.00 FEET;

 

  6) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 98°53’14”, AN ARC LENGTH OF 41.42 FEET TO A POINT OF NON-TANGENCY, TO WHICH A RADIAL BEARS NORTH 89°48’34” EAST;

 

  7) NORTH 89°48’34” EAST, 85.82 FEET;

 

  8) NORTH 00°11’26” WEST, 45.27 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 20.00 FEET;

 

  9) NORTHEASTERLY ALONG SAID CURVE, THOUGH A CENTRAL ANGLE OF 90°26’14”, AN ARCE LENGTH OF 31.57 FEET;

 

  10) SOUTH 89°45’12” EAST, 252.93 FEET;

THENCE DEPARTING SAID NORTHERLY LOT LINE AND SOUTHERLY RIGHT-OF-WAY THE FOLLOWING THIRTEEN (13) COURSES:

  1) SOUTH 00°04’44” EAST, 35.69 FEET;

 

  2) NORTH 89°57’34” EAST, 11.22 FEET;

 

  3) NORTH 00°03’10” EAST, 5.20 FEET;

 

  4) SOUTH 89°56’50” EAST, 86.88 FEET;

 

  5) SOUTH 00°01’37” EAST, 184.12 FEET;

 

  6) SOUTH 89°54’25” EAST, 100.14 FEET;

 

  7) SOUTH 00°01’51” EAST, 0.90 FEET;

 

  8) NORTH 89°58’09” EAST, 136.59 FEET;

 

  9) NORTH 00°01’34” EAST, 126.40 FEET;

 

  10) SOUTH 89°46’59” EAST, 43.24 FEET;

 

  11) NORTH 00°07’07” EAST, 79.81 FEET;

 

  12) NORTH 89°25’51” WEST, 28.13 FEET;

 

  13) NORTH 00°04’05” WEST, 7.84 FEET TO A POINT ON THE NORTHERLY LINE OF SAID PARCEL 2, BEING A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF MANDALAY BAY ROAD;

THENCE ALONG SAID NORTHERLY LOT LINE AND SOUTHERLY RIGHT-OF-WAY THE FOLLOWING EIGHT (8) COURSES:

 

  1) SOUTH 89°45’12” EAST, 390.89 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 540.00 FEET;

 

  2) SOUTHEASTERLY ALONG SAID CURVE , THROUGH A CENTRAL ANGLE OF 13°50’55”, AN ARC LENGTH OF 130.52 FEET;

 

  3) SOUTH 75°54’17” EAST, 10.10 FEET;

 

  4) SOUTH 14°05’43” WEST, 5.00 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 820.56 FEET, FROM WHICH BEGINNING THE RADIUS BEARS SOUTH 14°05’43” WEST;

 

  5) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 06°19’52”, AN ARC LENGTH OF 90.67 FEET TO THE BEGINNING OF A REVERSE CURVE, CONCAVE TO THE NORTHEAST, HAVING A RADIUS OF 160.50 FEET, THROUGH WHICH A RADIAL LINE BEARS NORTH 20°25’35” EAST;

 

  6) SOUTHEASTERLY ALONG SAID CURVE THROUGH A CENTRAL ANGLE OF 18°28’09”, AN ARC LENGTH OF 51.60 FEET;

 

  7) SOUTH 87°59’34” EAST, 47.57 FEET TO THE BEGINNING OF A CURVE CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 44.00 FEET

 

  8) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 28°57’02”, AN ARC LENGTH OF 22.23 FEET TO A POINT OF NON-TANGENCY, TO WHICH A RADIAL LINE BEARS NORTH 30°57’28” WEST, BEING THE NORTHEAST CORNER OF SAID PARCEL 2 AND A POINT ON THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD;

THENCE ALONG SAID EASTERLY LINE OF SAID PARCEL 2 AND WESTERLY RIGHT-OF-WAY LINE OF SAID LAS VEGAS BOULEVARD SOUTH 00°19’56” EAST, 2484.50

FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 94.50 FEET; THENCE DEPARTING SAID EASTERLY LOT LINE AND WESTERLY RIGHT-OF-WAY LINE AND SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 91°40’08”, AN ARC LENGTH OF 151.19 FEET TO A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 2, BEING A POINT ON THE NORTHERLY RIGHT-OF-WAY LINE OF RUSSELL ROAD;

THENCE ALONG THE SOUTHERLY LINE OF SAID PARCEL 2 AND NORTHERLY RIGHT-OF-WAY OF SAID RUSSELL ROAD THE FOLLOWING FIVE (5) COURSES:

 

  1) NORTH 88°39’48” WEST, 298.50 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 1018.00 FEET;

 

  2) SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 08°12’14”, AN ARC LENGTH OF 145.76 FEET;

 

  3) SOUTH 83°07’58” WEST, 564.67 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 882.00 FEET;

 

  4) SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL, OF 08°12’12”, AN ARC LENGTH OF 126.28 FEET;

 

  5) NORTH 88°39’50” WEST, 402.53 FEET TO THE SOUTHWEST CORNER OF SAID PARCEL 2, BEING A POINT ON THE EASTERLY RIGHT-OF-WAY LINE OF INTERSTATE 15;

THENCE ALONG THE WESTERLY LINE OF SID PARCEL 2 AND THE EASTERLY RIGHT-OF-WAY LINE OF SAID INTERSTATE 15, THE FOLLOWING ELEVEN (11) COURSES:

 

  1) NORTH 01°20’10” EAST, 58.26 FEET;

 

  2) NORTH 86°26’33” WEST, 89.06 FEET;

 

  3) NORTH 06°23’24” WEST, 88.00 FEET;

 

  4) NORTH 05°15’27” WEST, 49.41 FEET

 

  5) NORTH 11°36’04” WEST, 65.67 FEET;

 

  6) NORTH 15°48’20” WEST, 157.69 FEET;

 

  7) NORTH 18°00’59” WEST, 86.07 FEET;

 

  8) NORTH 20°58’11” WEST, 190.65 FEET;

 

  9) NORTH 22°00’32” WEST, 321.50 FEET

 

  10) NORTH 16°05’22” WEST, 249.02 FEET;

 

  11) NORTH 00°09’20” EAST, 1415.80 FEET TO THE POINT OF BEGINNING.

ALSO SHOWN AS “MANDALAY BAY” ON THAT CERTAIN RECORD OF SURVEY RECORDED FEBRUARY 13, 2013 IN FILE 188, PAGE 43 OF SURVEYS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE.

PARCEL II: (APN: 162-29-610-002)

A PORTION OF PARCEL 1 AS SHOWN IN THAT FINAL MAP TITLED “MANDALAY MILE NORTH, A COMMERCIAL SUBDIVISION”, RECORDED IN BOOK 110, PAGE 46 OF PLATS,

TOGETHER WITH A PORTION OF PARCEL 2 AS IN THAT CERTAIN FINAL MAP TITLED “MANDALAY MILE SOUTH, A COMMERCIAL SUBDIVISION”, RECORDED IN BOOK 110, PAGE 38 OF PLATS, ALSO TOGETHER WITH A PORTION OF MANDALAY BAY ROAD AS SHOWN IN THAT CERTAIN ORDER OF VACATION, RECORDED JUNE 28, 2012 IN BOOK 20120628, INSTRUMENT NO. 00415 ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, LYING WITHIN A PORTION OF THE EAST HALF (E  1 ⁄ 2 ) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST. M.D.M., CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHEAST CORNER OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SAID SECTION 29, THENCE ALONG THE SOUTH LINE THEREOF NORTH 89 ° 45’ 12” WEST, 203.24 FEET; THENCE DEPARTING SAID SOUTH LINE NORTH 00 ° 14’48”EAST, 99.55 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY OF MANDALAY BAY ROAD, BEING A POINT IN THE SOUTHERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE THE FOLLOWING FOUR (4) COURSES: 1) SOUTH 86 ° 54’15” WEST, 26.79 FEET; 2) NORTH 89 ° 48’34” WEST, 116.06 FEET; 3) SOUTH 88 ° 36’39” WEST, 275.74 FEET; 4) NORTH 89 ° 45’12”WEST, 262.72 FEET TO THE NORTHEAST CORNER OF LAND AS DESCRIBED IN SAID ORDER OF VACATION AND BEING THE POINT OF BEGINNING; THENCE DEPARTING SAID NORTHERLY RIGHT-OF WAY AND SOUTHERLY LOT LINE AND ALONG THE EAST LINE OF SAID ORDER OF VACATION SOUTH 00 ° 04’05” EAST, 80.01 FEET TO THE SOUTHEAST CORNER OF SAID ORDER OF VACATION, BEING A POINT ON THE SOUTHERLY RIGHT-OF-WAY LINE OF SAID MANDALAY BAY ROAD AND A POINT ON THE NORTHERLY LINE OF SAID PARCEL 2; THENCE DEPARTING SAID SOUTHERLY RIGHT-OF-WAY LINE AND NORTHERLY LOT LINE AND CONTINUING SOUTH 00 ° 04’05” EAST, 7.84 FEET; THENCE SOUTH 89 ° 25’51”EAST, 28.13 FEET; THENCE SOUTH 00 ° 07’07” WEST, 79.81 FEET; THENCE NORTH 89 ° 46’59” WEST, 43.24 FEET; THENCE SOUTH 00 ° 01’34” WEST, 126.40 FEET; THENCE SOUTH 89 ° 58’09” WEST, 136.59 FEET; THENCE NORTH 00 ° 01’51” WEST, 0.90 FEET; THENCE NORTH 89 ° 54’25” WEST, 100.14 FEET; THENCE NORTH 00 ° 01’37” WEST 184.12 FEET; THENCE NORTH 89 ° 56’50” WEST, 86.88 FEET; THENCE SOUTH 00 ° 03’10” WEST, 5.20 FEET; THENCE SOUTH 89 ° 57’34”WEST, 11.22 FEET; THENCE NORTH 00 ° 04’44” WEST, 35.69 FEET TO THE SOUTHWEST CORNER OF SAID ORDER OF VACATION, BEING A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF SAID MANDALAY BAY ROAD AND A POINT ON THE NORTHERLY LINE OF SAID PARCEL 2; THENCE DEPARTING SAID SOUTHERLY RIGHT-OF WAY AND NORTHERLY LOT LINE AND ALONG THE WEST LINE OF SAID ORDER OF VACATION AND CONTINUING NORTH 00 ° 04’44” WEST, 80.01 FEET TO THE NORTHWEST CORNER OF SAID ORDER OF VACATION, BEING A POINT ON THE NORTHERLY RIGHT-OF-WAY OF SAID MANDALAY BAY ROAD AND A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE NORTH89 ° 45’12”WEST, 295.59 FEET; THENCE DEPARTING SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE NORTH 00 ° 22’33” WEST, 137.14 FEET; THENCE

NORTH 89 ° 37’02” EAST, 180.30 FEET; THENCE NORTH 00 ° 29’48” WEST, 27.61 FEET, THENCE NORTH 89 ° 30’12” EAST, 116.19 FEET; THENCE NORTH 00 ° 04’44” WEST, 3.10 FEET; THENCE SOUTH 89 ° 55’13” EAST, 7.50 FEET; THENCE NORTH 00 ° 04’29” EAST 84.70 FEET; THENCE NORTH 89 ° 59’56” EAST 239.81 FEET; THENCE NORTH 00 ° 04’44” EAST 1.87 FEET; THENCE SOUTH 89 ° 55’16” EAST, 115.98 FEET; THENCE NORTH 00 ° 06’30”EAST, 3.68 FEET; THENCE SOUTH 89 ° 53’30” EAST, 14.90 FEET; THENCE SOUTH 00 ° 03’02” EAST, 254.12 FEET; THENCE SOUTH 89 ° 13’56” WEST, 27.99 FEET; THENCE SOUTH 00 ° 04’05” EAST, 8.39 FEET TO THE POINT OF BEGINNING.

ALSO SHOWN AS “MANDALAY PLACE’ ON THAT CERTAIN RECORD OF SURVEY, RECORDED FEBRUARY 13, 2013 IN FILE 188, PAGE 37 OF SURVEYS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE.

Property commonly known as the Monte Carlo Resort and Casino, described as follows:

PARCEL I:

LOT ONE (1) OF VICTORIA PARTNERS, A COMMERCIAL SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA OF OFFICIAL RECORDS.

EXCEPTING THEREFROM THE FOLLOWING PARCEL:

(PARK PARCEL (SOUTH)

BEING A PORTION OF LOT 1 OF VICTORIA PARTNERS, A COMMERCIAL SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 1, SAID POINT LIES AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE WITH THE NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE; THENCE ALONG THE BOUNDARY LINE OF SAID LOT 1, BEING THE NORTHERLY RIGHT-OF-WAY LINE OF SAID TROPICANA AVENUE, NORTH 89°03’52” EAST, A DISTANCE OF 638.46 FEET TO THE SOUTHWEST CORNER OF THAT LAND DESCRIBED IN DOCUMENT RECORDED IN BOOK 950106, AS INSTRUMENT NO. 00827 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA; THENCE DEPARTING SAID NORTHERLY RIGHT-OF-WAY LINE, AND ALONG THE WESTERLY LINE THEREOF, NORTH 00°08’05” EAST, A DISTANCE OF 667.93 FEET TO THE NORTHWEST CORNER THEREOF; THENCE ALONG THE NORTHERLY LINE THEREOF, NORTH 89°34’07” EAST, A DISTANCE OF 319.07 FEET TO THE POINT OF BEGINNING , SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 102.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 80°09’ 17” EAST; THENCE DEPARTING SAID NORTHERLY LINE AND BOUNDARY LINE, NORTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 37°45’18”, AN ARC LENGTH OF 67.21 FEET; THENCE NORTH 47°36’0l” WEST, A DISTANCE OF 88.72 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 136.00 FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE EASTERLY THROUGH A CENTRAL ANGLE OF 67°49’44”, AN ARC LENGTH OF 161.00 FEET; THENCE NORTH 20°13’43” EAST, A DISTANCE OF 47.94 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 32.00 FEET; THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 98°53’27”, AN ARC LENGTH OF 55.23 FEET TO A POINT OF CUSP WITH A CURVE HAVING A RADIUS OF 278.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 11°20’16” WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 19°28’ 11”, AN ARC LENGTH OF 94.47 FEET; THENCE SOUTH 59°11’33” EAST, A DISTANCE OF 107.75 FEET; THENCE SOUTH 65°51’08” EAST, A DISTANCE OF 106.30 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A

RADIUS OF 345.00 FEET; THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE NORTHERLY THROUGH A CENTRAL ANGLE OF 45°37’24”, AN ARC LENGTH OF 274.72 FEET; THENCE NORTH 68°31’28” EAST, A DISTANCE OF 41.26 FEET; THENCE NORTH 64°33’49” EAST, A DISTANCE OF 87.56 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 335.00 FEET; THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHERLY THROUGH A CENTRAL ANGLE OF 25°30’45”, AN ARC LENGTH OF 149.17 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 108.39 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 32.00 FEET; THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHERLY THROUGH A CENTRAL ANGLE OF 26°29’04”, AN ARC LENGTH OF 14.79 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD, BEING ALSO THE BOUNDARY LINE OF THE AFORESAID LOT 1: THENCE ALONG SAID WESTERLY RIGHT-OF- WAY LINE AND EASTERLY LOT LINE, SOUTH 00°02’00” EAST, A DISTANCE OF 137.20 FEET; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY LINE AND CONTINUING ALONG SAID BOUNDARY, SOUTH 89°58’00” WEST, A DISTANCE OF 600.00 FEET; THENCE SOUTH 00°02’00” EAST, A DISTANCE OF 156.56 FEET; THENCE SOUTH 89°34’07” WEST, A DISTANCE OF 189.05 FEET TO THE POINT OF BEGINNING.

THE ABOVE METES AND BOUNDS DESCRIPTION PREVIOUSLY APPEARED IN THAT CERTAIN QUITCLAIM DEED RECORDED SEPTEMBER 26, 2014 IN BOOK 20140926 AS DOCUMENT NO. 0001542, AND IS SHOWN ON THE MAP ON FILE IN FILE 192 OF SURVEYS, PAGE 83 AS THE “PARK PARCEL (SOUTH)”.

FURTHER EXCEPTING THEREFROM THE FOLLOWING PARCEL:

(PARK PARCEL (NORTH)

BEING A PORTION OF LOT 1 OF VICTORIA PARTNERS, A COMMERCIAL SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 1, SAID POINT LIES AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE WITH THE NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 1, BEING THE NORTHERLY RIGHT-OF-WAY LINE OF SAID TROPICANA AVENUE, NORTH 89°03’52” EAST, A DISTANCE OF 638.46 FEET TO THE SOUTHWEST CORNER OF THAT LAND DESCRIBED IN DOCUMENT RECORDED IN BOOK 950106, AS INSTRUMENT NO 00827 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA; THENCE DEPARTING SAID NORTHERLY RIGHT-OF..WAY LINE, AND ALONG THE WESTERLY LINE THEREOF, NORTH • 00°08’05” EAST, A DISTANCE OF 667.93 FEET TO THE NORTHWEST CORNER THEREOF; THENCE ALONG THE NORTHERLY LINE THEREOF, NORTH 89°34’07” EAST, A DISTANCE OF 508.11 FEET; THENCE NORTH 00°02’00” WEST, A DISTANCE OF 156.56 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 600.00 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND BOUNDARY, NORTH 00°02’00” WEST, A DISTANCE OF 228.46 FEET TO THE POINT

OF BEGINNING , SAID POINT BEING THE BEGINNING OF A NON TANGENT CURVE HAVING A RADIUS OF 32.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 49°56’48” EAST; THENCE DEPARTING SAID BOUNDARY LINE AND WESTERLY RIGHT-OF-WAY LINE, SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 50°02’55”, AN ARC LENGTH OF 27.95 FEET; THENCE NORTH 89°53’54” WEST, A DISTANCE OF 86.21 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 302.00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE SOUTHEASTERLY THROUGH A CENTRAL ANGLE OF 37°45’03”, AN ARC LENGTH OF 198.98 FEET TO THE BEGINNING OF A REVERSE CURVE HAVING A RADIUS OF 290.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 37°38’57” EAST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 16°10’26”, AN ARC LENGTH OF 81.86 FEET; THENCE SOUTH 68°31’28” WEST, A DISTANCE OF 37.87 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 297.00 FEET; THENCE WESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHERLY THROUGH A CENTRAL ANGLE OF 52°16’58”, AN ARC LENGTH OF 271.01 FEET; THENCE NORTH 59°11’33” WEST, A DISTANCE OF 155.80 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 30.00 FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE EASTERLY THROUGH A CENTRAL ANGLE OF 78°39’12”, AN ARC LENGTH OF 41.18 FEET; THENCE NORTH 19°27’38” EAST, A DISTANCE OF 17.63 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 100.16 FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE WESTERLY THROUGH A CENTRAL ANGLE OF 21°39’10”, AN ARC LENGTH OF 37.85 FEET; THENCE NORTH 60°04’41” EAST, A DISTANCE OF 50.43 FEET; THENCE SOUTH 29°55’19” EAST, A DISTANCE OF 124.15 FEET; THENCE NORTH 60°04’41”EAST, A DISTANCE OF 49.58 FEET; THENCE NORTH 89°50’13” EAST, A DISTANCE OF 204.74 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 33.50 FEET; THENCE SOUTH 89°55’26” EAST A DISTANCE OF 122.35 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 10.66 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 30.81 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 10.80 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 124.82 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 17.73 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 25.07 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 16.50 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 16.05 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 16.05 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44 ” EAST, A DISTANCE OF 17.33 FEET; THENCE NORTH 00°02’16” EAST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 32.17 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 19.91 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 21.60 FEET; THENCE NORTH 62°04’ 12” EAST, A DISTANCE OF 19.54 FEET; THENCE NORTH 33°04’56” EAST, A DISTANCE OF l.16 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 21.73 FEET TO THE AFORESAID WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD AND BOUNDARY LINE; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND BOUNDARY LINE, SOUTH 00°02’00” EAST, A DISTANCE OF 31.96 FEET TO THE POINT OF BEGINNING.

THE ABOVE METES AND BOUNDS DESCRIPTION PREVIOUSLY APPEARED IN THAT CERTAIN QUITCLAIM DEED RECORDED SEPTEMBER 4, 2015 IN BOOK 20150904 AS DOCUMENT NO. 0002036, AND IS SHOWN ON THE MAP ON FILE IN FILE 192 OF SURVEYS, PAGE 83 AS THE “PARK PARCEL (NORTH)”.

AND FURTHER EXCEPTING THEREFROM THE FOLLOWING PARCEL:

(ARENA PARCEL)

BEING A PORTION OF LOT 1 OF VICTORIA PARTNERS, A COMMERCIAL SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

BEGINNING AT THE SOUTHWEST CORNER OF SAID LOT 1, SAID POINT LIES AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE WITH THE NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE, SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 1140.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 80°16’54” EAST; THENCE ALONG THE WESTERLY LINE OF SAID LOT 1, BEING THE EASTERLY RIGHT-OF-WAY LINE OF SAID FRANK SINATRA DRIVE, NORTHERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE WESTERLY THROUGH A CENTRAL ANGLE OF 31°00’22”, AN ARC LENGTH OF 616.92 FEET; THENCE CONTINUING ALONG SAID WESTERLY LOT LINE AND EASTERLY RIGHT-OF-WAY LINE, NORTH 21°17’15” WEST, A DISTANCE OF 167.74 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 1060.00 FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE EASTERLY THROUGH A CENTRAL ANGLE OF 08°12’53”, AN ARC LENGTH OF 151.98 FEET; THENCE DEPARTING SAID WESTERLY LOT LINE AND EASTERLY RIGHT-OF-WAY LINE, NORTH 76°55’37” EAST, A DISTANCE OF 16.18 FEET TO THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 30.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 74°18’01” WEST; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHEASTERLY THROUGH A CENTRAL ANGLE OF 105°11’59”, AN ARC LENGTH OF 55.08 FEET; THENCE NORTH 89°30’00” EAST, A DISTANCE OF 578.27 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 340.00 FEET; THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE NORTHERLY THROUGH A CENTRAL ANGLE OF 29°46’40”, AN ARC LENGTH OF 176.71 FEET TO THE BEGINNING OF A REVERSE CURVE HAVING A RADIUS OF 278.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 30°16’18” WEST; THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHERLY THROUGH A CENTRAL ANGLE OF 41°36’34”, AN ARC LENGTH OF 201.89 FEET TO THE BEGINNING OF A COMPOUND CURVE HAVING A RADIUS OF 32.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 11°20’16” EAST; THENCE

SOUTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 98°53’27”, AN ARC LENGTH OF 55.23 FEET; THENCE SOUTH 20°13’43” WEST, A DISTANCE OF 47.94 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 136.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE NORTHEASTERLY THROUGH A CENTRAL ANGLE OF 67°49’44”, AN ARC LENGTH OF 161.00 FEET; THENCE SOUTH 47°36’01” EAST, A DISTANCE OF 88.72 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 102.00 FEET; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 37°45’18”, AN ARC LENGTH OF 67.21 FEET TO THE NORTHERLY LINE OF THAT LAND DESCRIBED IN DOCUMENT RECORDED IN BOOK 950106, AS INSTRUMENT NO. 00827 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA; THENCE ALONG SAID NORTHERLY LINE, SOUTH 89°34’07” WEST, A DISTANCE OF 319.07 FEET TO THE NORTHWEST CORNER THEREOF; THENCE ALONG THE WESTERLY LINE THEREOF, SOUTH 00°08’05” WEST, A DISTANCE OF 667.93 FEET TO THE AFORESAID NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE; THENCE DEPARTING SAID WESTERLY LINE AND ALONG SAID NORTHERLY RIGHT-OF-WAY LINE, SOUTH 89°03’52” WEST, A DISTANCE OF 638.46 FEET TO THE POINT OF BEGINNING.

THE ABOVE METES AND BOUNDS DESCRIPTION PREVIOUSLY APPEARED IN THAT CERTAIN QUITCLAIM DEED RECORDED AUGUST 20, 2014 IN BOOK 20140820 AS DOCUMENT NO. 0002234, AND IS SHOWN ON THAT MAP ON FILE IN FILE 192 OF SURVEYS, PAGE 84, AS “ARENA PARCEL”.

PARCEL II:

(PARK PARCEL (NORTH)

BEING A PORTION OF LOT 1 OF VICTORIA PARTNERS, A COMMERCIAL SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 1, SAID POINT LIES AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE WITH THE NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 1, BEING THE NORTHERLY RIGHT-OF-WAY LINE OF SAID TROPICANA AVENUE, NORTH 89°03’52” EAST, A DISTANCE OF 638.46 FEET TO THE SOUTHWEST CORNER OF THAT LAND DESCRIBED IN DOCUMENT RECORDED IN BOOK 950106, AS INSTRUMENT NO 00827 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA; THENCE DEPARTING SAID NORTHERLY RIGHT-OF-WAY LINE, AND ALONG THE WESTERLY LINE THEREOF, NORTH 00°08’05” EAST, A DISTANCE OF 667.93 FEET TO THE NORTHWEST CORNER THEREOF; THENCE ALONG

THE NORTHERLY LINE THEREOF, NORTH 89°34’07” EAST, A DISTANCE OF 508.11 FEET; THENCE NORTH 00°02’00” WEST, A DISTANCE OF 156.56 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 600.00 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND BOUNDARY, NORTH 00°02’00” WEST, A DISTANCE OF 228.46 FEET TO THE POINT OF BEGINNING , SAID POINT BEING THE BEGINNING OF A NON TANGENT CURVE HAVING A RADIUS OF 32.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 49°56’48” EAST; THENCE DEPARTING SAID BOUNDARY LINE AND WESTERLY RIGHT-OF-WAY LINE, SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 50°02’55”, AN ARC LENGTH OF 27.95 FEET; THENCE NORTH 89°53’54” WEST, A DISTANCE OF 86.21 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 302.00 FEET; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE SOUTHEASTERLY THROUGH A CENTRAL ANGLE OF 37°45’03”, AN ARC LENGTH OF 198.98 FEET TO THE BEGINNING OF A REVERSE CURVE HAVING A RADIUS OF 290.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 37°38’57” EAST; THENCE SOUTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHWESTERLY THROUGH A CENTRAL ANGLE OF 16°10’26”, AN ARC LENGTH OF 81.86 FEET; THENCE SOUTH 68°31’28” WEST, A DISTANCE OF 37.87 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 297.00 FEET; THENCE WESTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE NORTHERLY THROUGH A CENTRAL ANGLE OF 52°16’58”, AN ARC LENGTH OF 271.01 FEET; THENCE NORTH 59°11’33” WEST, A DISTANCE OF 155.80 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 30.00 FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE EASTERLY THROUGH A CENTRAL ANGLE OF 78°39’12”, AN ARC LENGTH OF 41.18 FEET; THENCE NORTH 19°27’38” EAST, A DISTANCE OF 17.63 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 100.16 FEET; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE WESTERLY THROUGH A CENTRAL ANGLE OF 21°39’10”, AN ARC LENGTH OF 37.85 FEET; THENCE NORTH 60°04’41” EAST, A DISTANCE OF 50.43 FEET; THENCE SOUTH 29°55’19” EAST, A DISTANCE OF 124.15 FEET; THENCE NORTH 60°04’41” EAST, A DISTANCE OF 49.58 FEET; THENCE NORTH 89°50’13” EAST, A DISTANCE OF 204.74 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 33.50 FEET; THENCE SOUTH 89°55’26” EAST A DISTANCE OF 122.35 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 10.66 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 30.81 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 10.80 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 124.82 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 17.73 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 25.07 FEET; THENCE SOUTH 00°04’34” WEST, A DISTANCE OF 16.50 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 16.05 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 16.50 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44 ” EAST, A DISTANCE OF 17.33 FEET; THENCE NORTH 00°02’16” EAST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 32.17 FEET; THENCE SOUTH 00°02’16” WEST, A DISTANCE OF 2.00 FEET; THENCE SOUTH 89°57’44” EAST, A DISTANCE OF 19.91 FEET; THENCE NORTH 00°04’34” EAST, A DISTANCE OF 21.60 FEET; THENCE NORTH 62°04’12” EAST, A DISTANCE OF 19.54 FEET; THENCE NORTH 33°04’56” EAST, A DISTANCE OF l.16 FEET; THENCE NORTH 89°58’00” EAST, A DISTANCE OF 21.73 FEET TO THE AFORESAID WESTERLY RIGHT-OF-WAY LINE OF LAS

VEGAS BOULEVARD AND BOUNDARY LINE; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY LINE AND BOUNDARY LINE, SOUTH 00°02’00” EAST, A DISTANCE OF 31.96 FEET TO THE POINT OF BEGINNING.

AS FURTHER SHOWN ON THAT CERTAIN RECORD OF SURVEY IN FILE 192, PAGE 83, OF SURVEYS, IN THE OFFICE OF THE COUNTY RECORDER, CLARK COUNTY, NEVADA.

PARCEL III:

A PERPETUAL, NON-EXCLUSIVE EASEMENT FOR THE INSTALLATION, USE, MAINTENANCE, REPAIR AND REPLACEMENT OF ANY AND ALL WATER, SEWER, GAS, TELEPHONE, ELECTRICAL AND OTHER UTILITY PIPES, LINES, CABLES AND OTHER INFRASTRUCTURE AS SET FORTH IN THAT CERTAIN RECIPROCAL EASEMENT AND ACCESS AGREEMENT, RECORDED MARCH 27, 2009 IN BOOK 20090327 AS DOCUMENT NO. 0000725, OFFICIAL RECORDS.

PARCEL IV:

A PERMANENT, NON-EXCLUSIVE EASEMENT ON, OVER, AND ACROSS THE JOINT ROADWAY EASEMENT AREA FOR THE PURPOSE OF VEHICULAR AND PEDESTRIAN INGRESS AND EGRESS AS SET FORTH IN THAT CERTAIN RECIPROCAL EASEMENT AGREEMENT FOR JOINT ROADWAY, RECORDED MARCH 27, 2009 IN BOOK 20090327 AS DOCUMENT NO. 0000726, OFFICIAL RECORDS.

PARCEL V:

A PERMANENT, NON-EXCLUSIVE EASEMENT ON, OVER AND ACROSS THE EMPLOYEE ACCESS AREAS FOR THE PURPOSE OF PEDESTRIAN INGRESS AND EGRESS AS SET FORTH IN THAT CERTAIN FRANK SINATRA GARAGE PARKING AND ACCESS EASEMENT AGREEMENT RECORDED MARCH 27, 2009 IN BOOK 20090327 AS DOCUMENT NO. 0000723, OFFICIAL RECORDS, AS AMENDED BY INSTRUMENT RECORDED NOVEMBER 21, 2014 IN BOOK 20141121 AS DOCUMENT NO. 0001527, OFFICIAL RECORDS

Subject property commonly known as: 3770 LAS VEGAS BOULEVARD SOUTH, Las Vegas, NV

Property commonly known as the Excalibur Hotel and Casino, described as follows:

A PORTION OF PARCEL 1 AS SHOWN IN THAT CERTAIN FINAL MAP TITLED “MANDALAY MILE NORTH, A COMMERCIAL SUBDIVISION”, RECORDED IN BOOK 110, PAGE 46 OF PLATS, TOGETHER WITH A PORTION OF TROPICANA AVENUE AS DESCRIBED BY THAT CERTAIN QUIT CLAIM DEED, RECORDED FEBRUARY 2, 2006 IN BOOK 20060222, INSTRUMENT NO. 01362, ALSO TOGETHER WITH A PORTION OF LAS VEGAS BOULEVARD AS DESCRIBED BY THAT CERTAIN RESOLUTION OF ABANDONMENT OF A PORTION OF HIGHWAY RIGHT-OF-WAY, RECORDED FEBRUARY 2, 2006 IN BOOK 20060222, INSTRUMENT NO. 01365 ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, LYING WITHIN A PORTION OF THE NORTH HALF (N 1/2) OF THE NORTHEAST QUARTER (NE 1/4) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHEAST CORNER OF THE NORTH HALF (N 1/2) OF THE NORTHEAST QUARTER (NE 1/4) OF SAID SECTION 29; THENCE ALONG SAID SOUTH LINE SOUTH 89°37’43” WEST, 150.00 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY OF LAS VEGAS BOULEVARD AND BEING A POINT ON THE EASTERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY AND EASTERLY LOT LINE, NORTH 00°20’10” WEST, 30.00 FEET TO THE POINT OF BEGINNING ; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY AND EASTERLY LOT LINE, SOUTH 89°37’43” WEST, 59.95 FEET; THENCE SOUTH 87°13’43” WEST, 194.12 FEET’ THENCE NORTH 88°10’36” WEST, 212.25 FEET; THENCE SOUTH 89°37’43” WEST, 1575.54 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY OF INTERSTATE 15, BEING A POINT ON THE WESTERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID EASTERLY RIGHT-OF-WAY AND WESTERLY LOT LINE THE FOLLOWING TEN (10) COURSES: 1) NORTH 00°09’20” EAST, 391.81 FEET; 2) NORTH 05°17’21” EAST, 283.71 FEET; 3) NORTH 12°24’04” EAST, 88.56 FEET; 4) NORTH 17°52’21” EAST, 152.42 FEET TO A POINT HEREIN AFTER REFERRED TO AS POINT “A” AND BEING THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 424.00 FEET, FROM WHICH BEGINNING THE RADIUS BEARS NORTH 01°30’50” WEST; 5) NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 32°17’50”, AN ARC LENGTH OF 239.01 FEET; 6) NORTH 56°11’20” EAST, 85.91 FEET; 7) SOUTH 33°48’40” EAST, 15.00 FEET; 8) SOUTH 89°57’29” EAST, 48.23 FEET; 9) NORTH 56°11’20” EAST, 114.06 FEET; 10) NORTH 47°26’41” EAST, 58.33 FEET TO A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF TROPICANA AVENUE, BEING A POINT ON THE NORTHERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID SOUTHERLY RIGHT-OF-WAY AND NORTHERLY LOT LINE THE FOLLOWING TWO (2) COURSES: 1) NORTH 88°59’03” EAST, 521.56 FEET; 2) NORTH 01°00’57” WEST, 27.62 FEET TO A POINT ON THE NORTHERLY LINE OF LAND AS DESCRIBED IN SAID QUIT CLAIM DEED, RECORDED FEBRUARY 2, 2006 IN BOOK 20060222, INSTRUMENT NO. 01362 ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, BEING A POINT ON THE SOUTHERLY RIGHT-OF-WAY OF SAID

TROPICANA AVENUE; THENCE ALONG SAID NORTHERLY LINE AND SOUTHERLY RIGHT-OF-WAY THE FOLLOWING ELEVEN (11) COURSES: 1) NORTH 03°50’45” EAST, 2.70 FEET; 2) NORTH 89°06’15” EAST, 176.73 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 28.70 FEET, FROM WHICH BEGINNING THE RADIUS BEARS SOUTH 04°23’03” EAST; 3) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 53°31’06”, AN ARC LENGTH OF 26.81 FEET TO A POINT OF NON-TANGENCY TO WHICH A RADIAL LINE BEARS NORTH 49°08’03” EAST; 4) NORTH 87°00’02” EAST, 130.87 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHEAST, HAVING A RADIUS OF 33.37 FEET, FROM WHICH BEGINNING THE RADIUS BEARS SOUTH 62°52’38” EAST; 5) NORTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 63°25’52”, AN ARC LENGTH OF 36.94 FEET TO A POINT OF NON-TANGENCY TO WHICH A RADIAL LINE BEARS NORTH 00°33’14” EAST; 6) NORTH 89°00’31” EAST, 188.21 FEET; 7) NORTH 89°00’28” EAST, 43.99 FEET; 8) NORTH 01°03’50” WEST, 4.09 FEET; 9) NORTH 88°56’10” EAST, 222.87 FEET; 10) SOUTH 87°26’03” EAST, 68.27 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 77.43 FEET, FROM WHICH BEGINNING THE RADIUS BEARS SOUTH 03°55’25” WEST; 11) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 37°15’49”, AN ARC LENGTH OF 50.36 FEET TO A POINT OF NON-TANGENCY, TO WHICH A RADIAL LINE BEARS NORTH 41°11’14” EAST, BEING A POINT ON THE WESTERLY RIGHT-OF-WAY OF SAID LAS VEGAS BOULEVARD, BEING A POINT ON THE EASTERLY LINE OF LAND AS DESCRIBED IN SAID RESOLUTION OF ABANDONMENT OF A PORTION OF HIGHWAY RIGHT-OF-WAY, RECORDED FEBRUARY 2, 2006 IN BOOK 20060222, INSTRUMENT NO. 01365 ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, AND BEING THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE SOUTHWEST, HAVING A RADIUS OF 77.43 FEET, FROM WHICH BEGINNING THE RADIUS BEARS SOUTH 41°11’14” WEST; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY AND EASTERLY LINE THE FOLLOWING FIVE (5) COURSES: 1) SOUTHEASTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 43°19’33”, AN ARC LENGTH OF 58.55 FEET TO A POINT OF NON-TANGENCY, TO WHICH A RADIAL LINE BEARS NORTH 84°30’47” EAST; 2) SOUTH 04°08’08” EAST, 67.85 FEET; 3) SOUTH 00°15’44” EAST, 27.67 FEET; 4) SOUTH 06°12’21” WEST, 62.23 FEET; 5) SOUTH 89°37’40” WEST, 23.16 FEET TO A POINT ON THE EASTERLY LINE OF SAID PARCEL 1, BEING A POINT ON THE WESTERLY RIGHT-OF-WAY OF SAID LAS VEGAS BOULEVARD; THENCE ALONG SAID EASTERLY LOT LINE AND WESTERLY RIGHT-OF-WAY SOUTH 00°20’10” EAST, 571.96 FEET; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY AND ALONG SAID EASTERLY LOT LINE THE FOLLOWING THREE (3) COURSES: 1) SOUTH 89°37’48” WEST, 175.00 FEET; 2) SOUTH 00°20’10” EAST, 140.00 FEET; 3) NORTH 89°37’48” EAST, 175.00 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY OF SAID LAS VEGAS BOULEVARD, BEING A POINT ON THE EASTERLY LINE OF PARCEL 1; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY AND CONTINUING ALONG SAID EASTERLY LOT LINE SOUTH 00°20’10” EAST, 229.97 FEET TO THE POINT OF BEGINNING .

TOGETHER WITH A PORTION OF PARCEL 1 AS SHOWN IN THAT CERTAIN FINAL MAP TITLED “MANDALAY MILE NORTH, A COMMERCIAL SUBDIVISION”, RECORDED IN BOOK 110, PAGE 46 OF PLATS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, LYING WITHIN A PORTION OF THE NORTHWEST QUARTER (NW 1/4) OF THE NORTHEAST QUARTER (NE 1/4) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

COMMENCING AT THE AFOREMENTIONED POINT “A” ; THENCE NORTH 17°52’21” EAST, 68.61 FEET TO THE POINT OF BEGINNING “A” ; THENCE CONTINUING NORTH 17°52’21” EAST, 122.55 FEET; THENCE NORTH 86°07’17” EAST, 187.48 FEET; THENCE SOUTH 33°48’40” EAST, 26.57 FEET; THENCE SOUTH 56°11’20” WEST, 85.91 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 360.00 FEET; THENCE WESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 28°40’12”, AN ARC LENGTH OF 180.14 FEET TO A POINT TO WHICH A RADIAL LINE BEARS SOUTH 05°08’28” EAST AND BEING THE POINT OF BEGINNING “A” .

ALSO DELINEATED AS “EXCALIBUR” ON THAT CERTAIN RECORD OF SURVEY IN FILE 192 OF SURVEYS, PAGE 1 IN THE OFFICE OF THE COUNTY RECORDER OF CLARK COUNTY, NEVADA.

AND

ALL THAT CERTAIN REAL PROPERTY SITUATED IN THE COUNTY OF CLARK, STATE OF NEVADA, DESCRIBED AS FOLLOWS:

THE NORTH 140 FEET OF THE SOUTH 400 FEET OF THE EASTERLY 325 FEET OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF THE NORTHEAST QUARTER (NE  1 ⁄ 4 ) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.B. & M.

EXCEPTING THEREFROM THE INTEREST IN AND TO THE EAST 150 FEET THEREOF AS CONVEYED TO THE STATE OF NEVADA FOR HIGHWAY PURPOSES.

AS REFERENCED BY THAT CERTAIN GRANT, BARGAIN AND SALE DEED RECORDED DECEMBER 29, 2005 IN BOOK 20051229 AS INSTRUMENT NO. 0003334, OF OFFICIAL RECORDS.

Subject property commonly known as: 3850 LAS VEGAS BOULEVARD SOUTH (EXCALIBUR), LAS VEGAS, NV

Property commonly known as the Luxor Hotel and Casino, described as follows:

A PORTION OF PARCEL 1 AS SHOWN IN THAT CERTAIN FINAL MAP TITLED “MANDALAY MILE NORTH, A COMMERCIAL SUBDIVISION”, RECORDED IN BOOK 110, PAGE 46 OF PLATS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE, LYING WITHIN A PORTION OF THE SOUTH HALF (S 1/2) OF THE NORTHEAST QUARTER (NE 1/4) OF SECTION 29, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF THE SOUTH HALF (S 1/2) OF THE NORTHEAST QUARTER (NE 1/4) OF SAID SECTION 29; THENCE ALONG THE SOUTH LINE THEREOF SOUTH 89°45’12” EAST, 326.02 FEET TO A POINT ON THE EASTERLY RIGHT-OF-WAY OF INTERSTATE 15, BEING A POINT ON THE WESTERLY RIGHT-OF-WAY OF SAID PARCEL 1 AND BEING THE POINT OF BEGINNING ; THENCE DEPARTING SAID SOUTHERLY LINE AND ALONG SAID EASTERLY RIGHT-OF-WAY AND WESTERLY LOT LINE, NORTH 00°09’20” EAST, 1385.84 FEET; THENCE DEPARTING SAID EASTERLY RIGHT-OF-WAY AND WESTERLY LOT LINE, NORTH 89°37’43” EAST, 1575.54 FEET; THENCE SOUTH 88°10’36” EAST, 212.25 FEET; THENCE NORTH 87°13’43” EAST, 194.12 FEET; THENCE NORTH 89°37’43” EAST, 59.95 FEET TO A POINT ON THE WESTERLY RIGHT-OF-WAY OF LAS VEGAS BOULEVARD, AND BEING A POINT ON THE EASTERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID WESTERLY RIGHT-OF-WAY AND EASTERLY LOT LINE THE FOLLOWING THREE (3) COURSES: 1) SOUTH 00°20’10” EAST, 30.00 FEET; 2) SOUTH 00°19’25” EAST, 1246.96 FEET TO THE BEGINNING OF A NON-TANGENT CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 65.00 FEET, FROM WHICH BEGINNING THE RADIUS BEARS NORTH 58°45’21” WEST; 3) SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 55°39’36”, AN ARC LENGTH OF 63.14 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY OF MANDALAY BAY ROAD AND BEING A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 1; THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY AND EASTERLY LOT LINE AND ALONG SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE THE FOLLOWING FOUR (4) COURSES: 1) SOUTH 86°54’15” WEST, 26.79 FEET; 2) NORTH 89°48’34” WEST, 116.06 FEET; 3) SOUTH 88°36’39” WEST, 275.74 FEET; 4) NORTH 89°45’12” WEST, 262.72 FEET; THENCE DEPARTING SAID RIGHT-OF-WAY AND SOUTHERLY LOT LINE, NORTH 00°04’05” WEST, 8.39 FEET; THENCE NORTH 89°13’56” EAST, 27.99 FEET; THENCE NORTH 00°03’02” WEST, 254.12 FEET; THENCE NORTH 89°53’30” WEST, 14.90 FEET; THENCE SOUTH 00°06’30” WEST, 3.68 FEET; THENCE NORTH 89°55’16” WEST, 115.98 FEET; THENCE SOUTH 00°04’44” WEST, 1.87 FEET; THENCE SOUTH 89°59’56” WEST, 239.81 FEET; THENCE SOUTH 00°04’29” WEST, 84.70 FEET; THENCE NORTH 89°55’13” WEST, 7.50 FEET; THENCE SOUTH 00°04’44” EAST, 3.10 FEET; THENCE SOUTH 89°30’12” WEST, 116.19 FEET; THENCE SOUTH 00°29’48” EAST, 27.61 FEET; THENCE SOUTH 89°37’02” WEST, 180.30 FEET; THENCE SOUTH 00°22’33” EAST, 137.14 FEET TO A POINT ON THE NORTHERLY RIGHT-OF-WAY OF SAID MANDALAY BAY ROAD AND

BEING A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 1; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE THE FOLLOWING SIX (6) COURSES: 1) NORTH 89°45’12” WEST, 71.54 FEET; 2) SOUTH 00°11’26” EAST, 2.93 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE NORTHWEST, HAVING A RADIUS OF 20.00 FEET; 3) SOUTHWESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 80°25’34”, AN ARC LENGTH OF 28.07 FEET; 4) SOUTH 80°14’08” WEST, 50.67 FEET; 5) SOUTH 79°25’20” WEST,150.45 FEET TO THE BEGINNING OF A CURVE, CONCAVE TO THE NORTH, HAVING A RADIUS OF 1695.00 FEET; 6) WESTERLY ALONG SAID CURVE, THROUGH A CENTRAL ANGLE OF 02°38’53”, AN ARC LENGTH OF 78.34 FEET TO A POINT TO WHICH A RADIAL LINE BEARS SOUTH 07°55’47” EAST, BEING A POINT ON THE EASTERLY LINE OF LOT 1 AS SHOWN IN FILE 87, PAGE 28 OF PARCEL MAPS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE; THENCE DEPARTING SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LOT LINE AND ALONG THE EASTERLY LINE OF SAID LOT 1, NORTH 00°09’20” EAST, 233.35 FEET TO THE NORTHEAST CORNER OF SAID LOT 1; THENCE ALONG THE NORTHERLY LINE OF SAID LOT 1 NORTH 89°51’33” WEST, 250.01 FEET TO THE NORTHWEST CORNER OF SAID LOT 1; THENCE ALONG THE WESTERLY LINE OF SAID LOT 1 SOUTH 00°09’20” WEST, 250.12 FEET TO THE SOUTHWEST CORNER OF SAID LOT 1, BEING A POINT ON THE NORTHERLY RIGHT-OF-WAY OF SAID HACIENDA AVENUE AND BEING A POINT ON THE SOUTHERLY LINE OF SAID PARCEL 1 AS SHOWN IN BOOK 110, PAGE 46 OF PLATS ON FILE AT THE CLARK COUNTY, NEVADA RECORDER’S OFFICE; THENCE ALONG SAID NORTHERLY RIGHT-OF-WAY AND SOUTHERLY LINE OF SAID PARCEL 1 NORTH 89°45’12” WEST, 60.00 FEET TO THE POINT OF BEGINNING .

ALSO DELINEATED AND DEPICTED ON THAT CERTAIN RECORD OF SURVEY FOR LUXOR HOTEL AND CASINO ON FILE IN BOOK 191 OF SURVEYS, PAGE 100, RECORDED MAY 19, 2014 IN BOOK 20140519 AS DOCUMENT NO. 0003004 OF OFFICIAL RECORDS.

(LEGAL DESCRIPTION AS PREVIOUSLY CONTAINED IN QUITCLAIM DEED RECORDED MAY 19, 2014 IN BOOK 20140519 AS DOCUMENT NO. 0003002 OF OFFICIAL RECORDS.)

Property commonly known as Park South, described as follows:

A PORTION OF LOT 1 OF VICTORIA PARTNERS, A COMMERCIAL SUBDIVISION, AS SHOWN ON THAT MAP ON FILE IN BOOK 147 OF PLATS, PAGE 50 IN THE CLARK COUNTY RECORDER’S OFFICE, CLARK COUNTY, NEVADA, LYING WITHIN THE SOUTHEAST QUARTER (SE  1 ⁄ 4 ) OF SECTION 20, TOWNSHIP 21 SOUTH, RANGE 61 EAST, M.D.M., CLARK COUNTY, NEVADA, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS:

COMMENCING AT THE SOUTHWEST CORNER OF SAID LOT 1, SAID POINT LIES AT THE INTERSECTION OF THE EASTERLY RIGHT-OF-WAY LINE OF FRANK SINATRA DRIVE WITH THE NORTHERLY RIGHT-OF-WAY LINE OF TROPICANA AVENUE; THENCE ALONG THE SOUTHERLY LINE OF SAID LOT 1, BEING THE NORTHERLY RIGHT-OF-WAY LINE OF SAID TROPICANA AVENUE, NORTH 89°03’52” EAST, A DISTANCE OF 638.46 FEET TO THE SOUTHWEST CORNER OF THAT LAND DESCRIBED IN DOCUMENT RECORDED IN BOOK 950106, AS INSTRUMENT NO. 00827 OF OFFICIAL RECORDS, CLARK COUNTY, NEVADA;

THENCE DEPARTING SAID NORTHERLY RIGHT-OF-WAY LINE, AND ALONG THE WESTERLY LINE THEREOF, NORTH 00°08’05” EAST, A DISTANCE OF 667.93 FEET TO THE NORTHWEST CORNER THEREOF;

THENCE ALONG THE NORTHERLY LINE THEREOF, NORTH 89°34’07” EAST, A DISTANCE OF 319.07 FEET TO THE POINT OF BEGINNING , SAID POINT BEING THE BEGINNING OF A NON-TANGENT CURVE HAVING A RADIUS OF 102.00 FEET, A RADIAL LINE TO SAID POINT BEARS NORTH 80°09’ I7” EAST;

THENCE DEPARTING SAID NORTHERLY LINE AND BOUNDARY LINE, NORTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 37°45’18”, AN ARC LENGTH OF 67.21 FEET;

THENCE NORTH 47°36’0l” WEST, A DISTANCE OF 88.72 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 136.00 FEET;

THENCE NORTHERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE EASTERLY THROUGH A CENTRAL ANGLE OF 67°49’44”, AN ARC LENGTH OF 161.00 FEET;

THENCE NORTH 20°13’43” EAST, A DISTANCE OF 47.94 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 32.00 FEET;

THENCE NORTHWESTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 98°53’27”, AN ARC LENGTH OF 55.23 FEET TO A POINT OF CUSP WITH A CURVE HAVING A RADIUS OF 278.00 FEET, A RADIAL LINE TO SAID POINT BEARS SOUTH 11°20’16” WEST; THENCE SOUTHEASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHWESTERLY THROUGH A CENTRAL ANGLE OF 19°28’ 11”, AN ARC LENGTH OF 94.47 FEET;

THENCE SOUTH 59°11’33” EAST, A DISTANCE OF 107.75 FEET; THENCE SOUTH 65°51’08” EAST, A DISTANCE OF 106.30 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 345.00 FEET;

THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE LEFT CONCAVE NORTHERLY THROUGH A CENTRAL ANGLE OF 45°37’24”, AN ARC LENGTH OF 274.72 FEET; THENCE NORTH 68°31’28” EAST, A DISTANCE OF 41.26 FEET;

THENCE NORTH 64°33’49” EAST, A DISTANCE OF 87.56 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 335.00 FEET;

THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHERLY THROUGH A CENTRAL ANGLE OF 25°30’45”, AN ARC LENGTH OF 149.17 FEET; THENCE SOUTH 89°55’26” EAST, A DISTANCE OF 108.39 FEET TO THE BEGINNING OF A TANGENT CURVE HAVING A RADIUS OF 32.00 FEET;

THENCE EASTERLY ALONG THE ARC OF SAID CURVE TO THE RIGHT CONCAVE SOUTHERLY THROUGH A CENTRAL ANGLE OF 26°29’04”, AN ARC LENGTH OF 14.79 FEET TO THE WESTERLY RIGHT-OF-WAY LINE OF LAS VEGAS BOULEVARD, BEING ALSO THE BOUNDARY LINE OF THE AFORESAID LOT 1:

THENCE ALONG SAID WESTERLY RIGHT-OF- WAY LINE AND EASTERLY LOT LINE, SOUTH 00°02’00” EAST, A DISTANCE OF 137.20 FEET;

THENCE DEPARTING SAID WESTERLY RIGHT-OF-WAY LINE AND CONTINUING ALONG SAID BOUNDARY, SOUTH 89°58’00” WEST, A DISTANCE OF 600.00 FEET; THENCE SOUTH 00°02’00” EAST, A DISTANCE OF 156.56 FEET;

THENCE SOUTH 89°34’07” WEST, A DISTANCE OF 189.05 FEET TO THE POINT OF BEGINNING.

ALSO DELINEATED AS “PARK SOUTH” ON THAT CERTAIN RECORD OF SURVEY IN FILE 192 OF SURVEYS, PAGE 83 IN THE OFFICE OF THE COUNTY RECORDER OF CLARK COUNTY, NEVADA.

Schedule 1.01(b): Initial Real Estate Assets

The properties commonly known by the names described below, the legal descriptions of which are contained in Schedule 1.01(a):

 

  1. MGM Grand Detroit

 

  2. Mandalay Bay

 

  3. The Mirage

 

  4. New York-New York

 

  5. The Park

 

  6. Beau Rivage

 

  7. Gold Strike Tunica

 

  8. Monte Carlo

 

  9. Luxor

 

  10. Excalibur
 

Schedule 2.01: Commitments

 

Lender

  Revolving
Commitment 		    Applicable
Revolving
Percentage 		    Term A
Commitment 		    Term A
Applicable
Percentage 		    Term B
Commitment 		    Term B
Applicable
Percentage 		    Total
Commitment 		 

Bank of America, N.A.

  $ 56,250,000.00        9.375000000 %    $ 28,125,000.00        9.375000000 %    $ 1,850,000,000.00        100.00000000 %    $ 1,934,375,000.00   

JPMorgan Chase Bank, N.A.

  $ 65,000,000.00        10.833333333 %    $ 32,500,000.00        10.833333333 %      —          —        $ 97,500,000.00   

Barclays Bank PLC

  $ 56,250,000.00        9.375000000 %    $ 28,125,000.00        9.375000000 %      —          —        $ 84,375,000.00   

Citibank, N.A.

  $ 56,250,000.00        9.375000000 %    $ 28,125,000.00        9.375000000 %      —          —        $ 84,375,000.00   

Deutsche Bank AG New York Branch

  $ 51,250,000.00        8.541666667 %    $ 25,625,000.00        8.541666667 %      —          —        $ 76,875,000.00   

BNP Paribas

  $ 51,250,000.00        8.541666667 %    $ 25,625,000.00        8.541666667 %      —          —        $ 76,875,000.00   

Fifth Third Bank

  $ 51,250,000.00        8.541666667 %    $ 25,625,000.00        8.541666667 %      —          —        $ 76,875,000.00   

SunTrust Bank

  $ 47,500,000.00        7.916666667 %    $ 23,750,000.00        7.916666667 %      —          —        $ 71,250,000.00   

Sumitomo Mitsui Banking Corporation

  $ 43,333,333.33        7.222222222 %    $ 21,666,666.67        7.222222223 %      —          —        $ 65,000,000.00   

Morgan Stanley Bank, N.A.

  $ 42,500,000.00        7.083333333 %    $ 21,250,000.00        7.083333333 %      —          —        $ 63,750,000.00   

Credit Agricole Corporate and Investment Bank

  $ 31,250,000.00        5.208333333 %    $ 15,625,000.00        5.208333333 %      —          —        $ 46,875,000.00   

The Bank of Nova Scotia

  $ 25,000,000.00        4.166666667 %    $ 12,500,000.00        4.166666667 %      —          —        $ 37,500,000.00   

Citizens Bank, N.A.

  $ 22,916,666.67        3.819444445 %    $ 11,458,333.33        3.819444443 %      —          —        $ 34,375,000.00   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Total

  $ 600,000,000.00        100.00000000 %    $ 300,000,000.00        100.00000000 %    $ 1,850,000,000        100.00000000 %    $ 2,750,000,000.00   
 

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

   

 

 

 

Schedule 2.16: Auction Procedures

This Schedule 2.16 is intended to summarize certain basic terms of the reverse Dutch auction procedures pursuant to and in accordance with the terms and conditions of Section 2.16 of the Credit Agreement, of which this Schedule 2.16 is a part. It is not intended to be a definitive statement of all of the terms and conditions of a reverse Dutch auction, the definitive terms and conditions for which shall be set forth in the applicable offering document. None of the Administrative Agent, the Auction Manager, or any of their respective affiliates or any officers, directors, employees, agents or attorneys-in-fact of such Persons (together with the Administrative Agent and its affiliates, the “ Agent-Related Persons ”) makes any recommendation pursuant to any offering document as to whether or not any Lender should sell any of its Term Loans to any Borrower pursuant to any offering documents, nor shall the decision by the Administrative Agent, the Auction Manager or any other Agent-Related Person (or any of their affiliates) in its respective capacity as a Lender to sell any of its Term Loans to any Borrower be deemed to constitute such a recommendation. Each Lender should make its own decision on whether to sell any of its Term Loans and, if it decides to do so, the principal amount of and price to be sought for such Term Loans. In addition, each Lender should consult its own attorney, business advisor and tax advisor as to legal, business, tax and related matters concerning each Auction and the relevant offering documents. Capitalized terms not otherwise defined in this Schedule 2.16 have the meanings assigned to them in the Credit Agreement.

(a) Notice Procedures . In connection with each Auction, the applicable Borrower will provide notification to the Auction Manager for distribution to the Lenders of the applicable Term Facility (each, an “ Auction Notice ”). Each Auction Notice shall contain (i) the maximum principal amount (calculated on the face amount thereof) of Term Loans in the relevant Term Facility that such Borrower offers to purchase in such Auction (the “ Auction Amount ”), which shall be no less than $10,000,000 (unless another amount is agreed to by the Administrative Agent); (ii) the range of discounts to par (the “ Discount Range ”), expressed as a range of prices per $1,000 (in increments of $5), at which such Borrower would be willing to purchase such Term Loans in such Auction; and (iii) the date on which such Auction will conclude, on which date Return Bids (as defined below) will be due by 10:00 a.m. (Pacific time) (as such date and time may be extended by the Auction Manager, such time the “ Expiration Time ”). Such Expiration Time may be extended for a period not exceeding three (3) Business Days upon notice by such Borrower to the Auction Manager received not less than 24 hours before the original Expiration Time; provided that only one extension per offer shall be permitted. An Auction shall be regarded as a “failed auction” in the event that either (x) such Borrower withdraws such Auction in accordance with the terms hereof or (y) the Expiration Time occurs with no Qualifying Bids (as defined below) having been received. In the event of a failed auction, no Borrower shall be permitted to deliver a new Auction Notice prior to the date occurring three (3) Business Days after such withdrawal or Expiration Time, as the case may be.

(b) Reply Procedures . In connection with any Auction, each Lender of Term Loans of the applicable Term Facility wishing to participate in such Auction shall, prior to the Expiration Time, provide the Auction Manager with a notice of participation, in the form included in the respective offering document (each, a “ Return Bid ”) which shall specify (i) a discount to par that must be expressed as a price per $1,000 (in increments of $5) in principal amount of Term Loans (the “ Reply Price ”) within the Discount Range and (ii) the principal amount of such Term Loans, in an amount not less than $1,000,000 or an integral multiple of $1,000 in excess thereof, that such Lender offers for sale at its Reply Price (the “ Reply Amount ”). A Lender may submit a Reply Amount that is less than the minimum amount and incremental amount requirements described above only if the Reply Amount comprises the entire amount of the Term Loans of such Term Facility held by such Lender. Lenders may only submit one Return Bid per Auction but each Return Bid may contain up to three (3) component bids, each of which may result in a separate Qualifying Bid and each of which will not be contingent on any other component bid submitted

by such Lender resulting in a Qualifying Bid. In addition to the Return Bid, the participating Lender must execute and deliver, to be held by the Auction Manager, an assignment and acceptance in the form included in the offering document (each, an “ Auction Assignment and Assumption ”). The applicable Borrower will not purchase any Term Loans at a price that is outside of the applicable Discount Range, nor will any Return Bids (including any component bids specified therein) submitted at a price that is outside such applicable Discount Range be considered in any calculation of the Applicable Threshold Price.

(c) Acceptance Procedures . Based on the Reply Prices and Reply Amounts received by the Auction Manager, the Auction Manager, in consultation with the applicable Borrower, will calculate the lowest purchase price (the “ Applicable Threshold Price ”) for such Auction within the Discount Range for such Auction that will allow such Borrower to complete the Auction by purchasing the full Auction Amount (or such lesser amount of Term Loans for which such Borrower has received Qualifying Bids). Such Borrower shall purchase Term Loans from each Lender whose Return Bid is within the Discount Range and contains a Reply Price that is equal to or less than the Applicable Threshold Price (each, a “ Qualifying Bid ”). All Term Loans included in Qualifying Bids (including multiple component Qualifying Bids contained in a single Return Bid) received at a Reply Price lower than the Applicable Threshold Price will be purchased at such applicable Reply Prices and shall not be subject to proration.

(d) Proration Procedures . All Term Loans offered in Return Bids (or, if applicable, any component thereof) constituting Qualifying Bids at the Applicable Threshold Price will be purchased at the Applicable Threshold Price; provided that if the aggregate principal amount (calculated on the face amount thereof) of all Term Loans for which Qualifying Bids have been submitted in any given Auction at the Applicable Threshold Price would exceed the remaining portion of the Auction Amount (after deducting all Term Loans to be purchased at prices below the Applicable Threshold Price), the applicable Borrower shall purchase the Term Loans for which the Qualifying Bids submitted were at the Applicable Threshold Price ratably based on the respective principal amounts offered and in an aggregate amount equal to the amount necessary to complete the purchase of the Auction Amount. No Return Bids or any component thereof will be accepted above the Applicable Threshold Price.

(e) Notification Procedures . The Auction Manager will calculate the Applicable Threshold Price and post the Applicable Threshold Price and proration factor onto an internet or intranet site (including an IntraLinks, SyndTrak or other similar electronic system) in accordance with the Auction Manager’s standard dissemination practices by 1:00 p.m. (Pacific time) on the same Business Day as the date the Return Bids were due (as such due date may be extended in accordance with this Schedule 2.16 ). The Auction Manager will insert the principal amount of Term Loans to be assigned and the applicable settlement date into each applicable Auction Assignment and Assumption received in connection with a Qualifying Bid. Upon the request of the submitting Lender, the Auction Manager will promptly return any Auction Assignment and Assumption received in connection with a Return Bid that is not a Qualifying Bid.

(f) Additional Procedures . In connection with any Auction, upon submission by a Lender of a Return Bid, such Lender will not have any withdrawal rights. Any Return Bid (including any component bid thereof) delivered to the Auction Manager may not be modified, revoked, terminated or cancelled by a Lender. However, an Auction may become void if the conditions to the purchase of Term Loans by the applicable Borrower required by the terms and conditions of Section 2.16 of the Credit Agreement are not met. The purchase price in respect of each Qualifying Bid for which purchase by such Borrower is required in accordance with the foregoing provisions shall be paid directly by such Borrower to the respective assigning Lender on a settlement date as determined jointly by such Borrower and the Auction Manager (which shall be not later than ten (10) Business Days after the date Return Bids are

due). Such Borrower shall execute each applicable Auction Assignment and Assumption received in connection with a Qualifying Bid. All questions as to the form of documents and validity and eligibility of Term Loans that are the subject of an Auction will be determined by the Auction Manager, in consultation with such Borrower, and their determination will be final and binding so long as such determination is not inconsistent with the terms of Section 2.16 of the Credit Agreement or this Schedule 2.16 . The Auction Manager’s interpretation of the terms and conditions of the offering document, in consultation with such Borrower, will be final and binding so long as such interpretation is not inconsistent with the terms of Section 2.16 of the Credit Agreement or this Schedule 2.16 . None of the Administrative Agent, the Auction Manager, any other Agent-Related Person or any of their respective affiliates assumes any responsibility for the accuracy or completeness of the information concerning the Borrowers, the Loan Parties, or any of their affiliates (whether contained in an offering document or otherwise) or for any failure to disclose events that may have occurred and may affect the significance or accuracy of such information. This Schedule 2.16 shall not require any Borrower to initiate any Auction.

Schedule 5.04: Subsidiaries

 

Restricted Subsidiaries   

Form of

Legal Entity

   Jurisdiction of
Organization 		     Percentage
Ownership 		 

MGP Lessor, LLC

   Limited Liability
Company 		     Delaware         100 % 

MGP Lessor Holdings, LLC

   Limited Liability
Company 		     Delaware         100 % 

MGP Escrow Co-Issuer, Inc.

   Corporation      Delaware         100 % 

Unrestricted Subsidiaries

   Form of
Legal Entity 		   Jurisdiction
of Formation 		     Percentage
Ownership 		 

None

        

Non-Control Subsidiaries

   Form of
Legal Entity 		   Jurisdiction of
Organization 		     Percentage
Ownership 		 

None

        

Schedule 5.24 Flood Zone Properties

The properties commonly known by the names described below, the legal descriptions of which are contained in Schedule 1.01(a) :

 

  1. Gold Strike Resort and Casino

 

  2. Beau Rivage Hotel and Casino

Schedule 11.02: Notice Addresses

Website of the Borrower for links to documents pursuant to Section 7.01:

http://mgmresorts.investorroom.com/

Address for Borrower and each Restricted Subsidiary :

MGM Growth Properties Operating Partnership LP

3950 Las Vegas Boulevard South

Las Vegas, Nevada 89119

Attn: Andy H. Chien

Telephone: 702-669-1470

Email: achien@mgmgrowthproperties.com

With a copy to :

Milbank, Tweed, Hadley & McCloy LLP

Attn: Rod Miller

28 Liberty Street

New York, New York 10005-1413

Telecopier: 212 822-5022

Telephone: 212 530-5022

Email: rdmiller@milbank.com

Address for Administrative Agent :

For payments and Requests for Credit Extensions :

Bank of America, N.A.

901 Main Street

Mail Code: TX1-492-14-11

Dallas, TX 75202-3714

Attention: Diana R. Lopez

Telecopier: (214) 290-8384

Telephone: (972) 338-3774

Email: diana.r.lopez@baml.com

Other Notices as Administrative Agent :

Bank of America, N.A.

Agency Management

901 Main Street, 14th Floor

Mail Code: TX1-492-14-19

Dallas, TX 75202-3714

Attention: Dewayne D. Rosse

Telecopier: (214) 672-8623

Telephone: (214) 209-0529

Email: dewayne.rosse@baml.com

In each case, with a copy to :

Latham & Watkins LLP

Attn: Sony Ben-Moshe

12670 High Bluff Drive

San Diego, CA 92130

Telecopier: (858) 523-5450

Telephone: (858) 523-3925

Email: sony.ben-moshe@lw.com

Address for L/C Issuer :

Bank of America, N.A.

Trade Operations

1 Fleet Way

Mail Code: PA6-580-02-30

Scranton, PA 18507

Attention: Alfonso Malave Jr.

Telecopier: (800) 755-8743

Telephone: (570) 496-9622

Email: alfonso.malave@baml.com

With a copy to :

Latham & Watkins LLP

Attn: Sony Ben-Moshe

12670 High Bluff Drive

San Diego, CA 92130

Telecopier: (858) 523-5450

Telephone: (858) 523-3925

Email: sony.ben-moshe@lw.com

EXHIBIT A

FORM OF COMMITTED LOAN NOTICE

Date:            ,         

 

To: Bank of America, N.A., as Administrative Agent

Ladies and Gentlemen:

Reference is made to that certain Credit Agreement, entered into as of April 25, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Borrower ”), each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), and Bank of America, N.A., as Administrative Agent and an L/C Issuer.

 

  The undersigned hereby requests (select one):

 

  ¨ A Borrowing of [Revolving][Term B] Loans 1

 

  ¨ A conversion or continuation of [Revolving][Term B] Loans 2

 

1.    On                      (a Business Day).   
2.    In the amount of $           

 

3.    Comprised of   

 

  
      [Type of Loan requested]   

 

4.    For Eurodollar Rate Loans: with an Interest Period of [     months][1 week].

[After giving effect to any Revolving Borrowing, (i) the Revolving Exposure of any Revolving Lender shall not exceed such Revolving Lender’s Revolving Commitment, (ii) the Revolving Class Exposure of any Revolving Lender in respect of any Class shall not exceed such Revolving Lender’s Revolving Commitment of such Class, (iii) the Revolving Class Exposure of all Revolving Lenders in respect of any Class of Revolving Commitments shall not exceed the aggregate outstanding Revolving Commitments of such Class, (iv) the aggregate Revolving Exposures shall not exceed the total Revolving Commitments and (v) the Total Revolving Outstandings shall not exceed the aggregate outstanding Revolving Commitments.] 3

 

1   Insert another Class of Loans, if applicable.
2   Insert another Class of Loans, if applicable.
3   Include this sentence in the case of a Revolving Borrowing.

 

Form of Committed Loan Notice

 

A-1

The Borrower hereby represents and warrants that the conditions specified in Sections 4.02(a) and (b) of the Agreement shall be satisfied on and as of the date of the applicable Credit Extension.

 

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP
By:  

 

Name:  

 

Title:  

 

 

Form of Committed Loan Notice

 

A-2

EXHIBIT B-1

FORM OF TERM A NOTE

        ,         

FOR VALUE RECEIVED, the undersigned (the “ Borrower ”) hereby promises to pay to                      or registered assigns (the “ Lender ”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of the Term A Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of April 25, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and an L/C Issuer.

The Borrower promises to pay interest on the unpaid principal amount of the Term A Loan made by the Lender from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any principal amount is not paid in full when due hereunder (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such unpaid principal amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. If any other amount payable by the Borrower hereunder is not paid in full when due hereunder (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.

This Term A Note is one of the Term A Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Term A Note is also entitled to the benefits of the Guaranty and is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term A Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. The Term A Loan made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Term A Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.

The Borrower, for itself and its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non- payment of this Term A Note.

 

Form of Term A Note

 

B-1-1

THIS TERM A NOTE AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS TERM A NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL EACH BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

Borrower:
MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP

By:

 

 

Name:

 

 

Title:

 

 

 

Form of Term A Note

 

B-1-2

LOANS AND PAYMENTS WITH RESPECT THERETO

 

Date

  Type of
Loan Made 		  Amount of
Loan Made 		  End of
Interest
Period 		  Amount of
Principal or
Interest Paid
This Date 		  Outstanding
Principal
Balance
This Date 		  Notation
Made By
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           

 

Form of Term A Note

 

B-1-3

EXHIBIT B-2

FORM OF TERM B NOTE

            ,         

FOR VALUE RECEIVED, the undersigned (the “ Borrower ”) hereby promises to pay to                      or registered assigns (the “ Lender ”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of the Term B Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of April 25, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and an L/C Issuer.

The Borrower promises to pay interest on the unpaid principal amount of the Term B Loan made by the Lender from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any principal amount is not paid in full when due hereunder (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such unpaid principal amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. If any other amount payable by the Borrower hereunder is not paid in full when due hereunder (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.

This Term B Note is one of the Term B Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Term B Note is also entitled to the benefits of the Guaranty and is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Term B Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. The Term B Loan made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Term B Note and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.

The Borrower, for itself and its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non- payment of this Term B Note.

 

Form of Term B Note

 

B-2-1

THIS TERM B NOTE AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS TERM B NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL EACH BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

Borrower:
MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP
By:  

 

Name:  

 

Title:  

 

 

Form of Term B Note

 

B-2-2

LOANS AND PAYMENTS WITH RESPECT THERETO

 

Date

  Type of
Loan Made 		  Amount of
Loan Made 		  End of
Interest
Period 		  Amount of
Principal or
Interest Paid
This Date 		  Outstanding
Principal
Balance
This Date 		  Notation
Made By
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           

 

Form of Term B Note

 

B-2-3

EXHIBIT B-3

FORM OF REVOLVING NOTE

            ,         

FOR VALUE RECEIVED, the undersigned (the “ Borrower ”) hereby promises to pay to                      or registered assigns (the “ Lender ”), in accordance with the provisions of the Agreement (as hereinafter defined), the principal amount of each Revolving Loan from time to time made by the Lender to the Borrower under that certain Credit Agreement, dated as of April 25, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and an L/C Issuer.

The Borrower promises to pay interest on the unpaid principal amount of each Revolving Loan made by the Lender from the date of such Loan until such principal amount is paid in full, at such interest rates and at such times as provided in the Agreement. All payments of principal and interest shall be made to the Administrative Agent for the account of the Lender in Dollars in immediately available funds at the Administrative Agent’s Office. If any principal amount is not paid in full when due hereunder (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, such unpaid principal amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement. If any other amount payable by the Borrower hereunder is not paid in full when due hereunder (without regard to any applicable grace periods), whether at stated maturity, by acceleration or otherwise, then upon the request of the Required Lenders such unpaid amount shall bear interest, to be paid upon demand, from the due date thereof until the date of actual payment (and before as well as after judgment) computed at the per annum rate set forth in the Agreement.

This Revolving Note is one of the Revolving Notes referred to in the Agreement, is entitled to the benefits thereof and may be prepaid in whole or in part subject to the terms and conditions provided therein. This Revolving Note is also entitled to the benefits of the Guaranty and is secured by the Collateral. Upon the occurrence and continuation of one or more of the Events of Default specified in the Agreement, all amounts then remaining unpaid on this Revolving Note shall become, or may be declared to be, immediately due and payable all as provided in the Agreement. Revolving Loans made by the Lender shall be evidenced by one or more loan accounts or records maintained by the Lender in the ordinary course of business. The Lender may also attach schedules to this Revolving Note and endorse thereon the date, amount and maturity of its Revolving Loans and payments with respect thereto.

The Borrower, for itself and its successors and assigns, hereby waives diligence, presentment, protest and demand and notice of protest, demand, dishonor and non- payment of this Revolving Note.

 

Form of Revolving Note

 

B-3-1

THIS REVOLVING NOTE AND ANY CLAIMS, CONTROVERSY, DISPUTE OR CAUSE OF ACTION (WHETHER IN CONTRACT OR TORT OR OTHERWISE) BASED UPON, ARISING OUT OF OR RELATING TO THIS REVOLVING NOTE AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL EACH BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK.

 

Borrower:
MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP
By:  

 

Name:  

 

Title:  

 

 

Form of Revolving Note

 

B-3-2

LOANS AND PAYMENTS WITH RESPECT THERETO

 

Date

  Type of
Loan Made 		  Amount of
Loan Made 		  End of
Interest
Period 		  Amount of
Principal or
Interest Paid
This Date 		  Outstanding
Principal
Balance
This Date 		  Notation
Made By
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           
           

 

Form of Revolving Note

 

B-3-3

EXHIBIT C

FORM OF COMPLIANCE CERTIFICATE

Financial Statement Date:             ,         

 

To: Bank of America, N.A., as Administrative Agent

Ladies and Gentlemen:

Reference is made to that certain Credit Agreement, dated as of April 25, 2016 (as amended, restated, extended, supplemented or otherwise modified in writing from time to time, the “ Agreement ;” the terms defined therein being used herein as therein defined), among MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Borrower ”), each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), and Bank of America, N.A., as Administrative Agent and an L/C Issuer.

The undersigned Responsible Officer hereby certifies as of the date hereof that he/she is the                      of the Borrower, and that, as such, he/she is authorized to execute and deliver this Certificate to the Administrative Agent on the behalf of the Borrower, and that:

[ Use following paragraph 1 for fiscal year-end financial statements ]

1. The Borrower has delivered the year-end audited financial statements required by Section 7.01(b) of the Agreement for the Fiscal Year ended as of the above date (including supplemental schedules reconciling the financial statements of the Borrower and the Guarantors, on the one hand, and the Subsidiaries that are not Guarantors on the other hand), all in reasonable detail, together with the report of an independent public accountant as required by such section.

[ Use following paragraph 1 for fiscal quarter-end financial statements ]

1. The Borrower has delivered the unaudited financial statements required by Section 7.01(a) of the Agreement for the Fiscal Quarter ended as of the above date (including supplemental schedules reconciling the financial statements of the Borrower and the Guarantors, on the one hand, and the Subsidiaries that are not Guarantors on the other hand). Such financial statements fairly present in all material respects the financial condition, results of operations and changes in financial position of the Borrower and its Restricted Subsidiaries as of their respective dates and for the covered periods in conformity with GAAP (except for the absence of certain footnotes and other informational disclosures customarily omitted from interim financial statements).

2. The undersigned has reviewed and is familiar with the terms of the Agreement and has made, or has caused to be made under his/her supervision, a detailed review of the transactions and condition (financial or otherwise) of the Borrower and the Restricted Subsidiaries during the accounting period covered by such financial statements.

 

Form of Compliance Certificate

 

C-1

3. A review of the activities of the Borrower and the Restricted Subsidiaries during such fiscal period has been made under the supervision of the undersigned with a view to determining whether during such fiscal period the Loan Parties performed and observed all their Obligations under the Loan Documents, and

[ select one: ]

[to the best knowledge of the undersigned, as of the date hereof, no Default or Event of Default has occurred and is continuing.]

—or—

[to the best knowledge of the undersigned, the following covenants or conditions have not been performed or observed and the following is a list of each such Default or Event of Default and its nature and status:]

4. The financial covenant analyses and information set forth on Schedule 1 attached hereto are true and accurate on and as of the date of this Certificate.

5. The additional amount designated by the Borrower for inclusion in the Available Excluded Contribution Amount as of the financial statement date for which this Certificate is delivered is $[●], and the total amount available for inclusion in the Available Excluded Contribution Amount is $[●].

6. In the event of any conflict between the terms of this Certificate and the Agreement, the Agreement shall control, and Schedule 1 and any other attachments to this executed Certificate shall be revised as necessary to conform in all respects to the requirements of the Agreement in effect as of the delivery of this executed Certificate.

IN WITNESS WHEREOF, the undersigned has executed this Certificate as of             ,         .

 

MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP
By:  

 

Name:  

 

Title:  

 

 

Form of Compliance Certificate

 

C-2

For the Fiscal Quarter/Fiscal Year ended             ,          (“ Statement Date ”)

SCHEDULE 1

to the Compliance Certificate

($ in 000’s)

 

I.    Section 8.11(a) Senior Secured Net Debt to Adjusted Total Assets Ratio   
   A.    Net Funded Senior Secured Indebtedness as of the Statement Date 1 :    $                
   B.    EBITDA of the Borrower Group for the most recently ended period of four consecutive Fiscal Quarters ending on the Statement Date:    $                
   C.    EBITDA of the Borrower Group for the most recently ended period of four consecutive Fiscal Quarters ending on the Statement Date attributable to Unconsolidated Affiliates:    $                
   D.    Without duplication of amounts included in I.B., the aggregate amount of any recurring or ordinary course cash dividends or other recurring or ordinary cash distributions received by the Borrower Group from Unconsolidated Affiliates, Unrestricted Subsidiaries or from cost method investments 2 :    $                
   E.    Borrower Group EBITDA (I.B – I.C + I. D):    $                
   F.    100% of the book value (determined in accordance with GAAP but determined without giving effect to any depreciation) of any such Development Property or Redevelopment Property (or former Development Property or Redevelopment Property) owned or leased under an Eligible Ground Lease by the Borrower Group as of the Statement Date; provided that financial results for one complete Fiscal Quarter following completion or opening are not yet available:    $                
   G.    100% of the book value (determined in accordance with GAAP) of any undeveloped land owned or leased under an Eligible Ground Lease by the Borrower Group as of the Statement Date:    $                
   H.    The amount (but not less than zero) equal to all unrestricted cash and Cash Equivalents on hand of the Borrower Group as of the   

 

1   Net Funded Total Indebtedness (see II.A.) that is then secured by Liens on the Collateral as of such date (other than any such Net Funded Total Indebtedness that is expressly subordinated in right of payment to the Obligations pursuant to a written agreement).
2  

For the avoidance of doubt, dividend or cash distribution shall be deemed recurring or ordinary course to the extent such distribution was not intended to be a special dividend or distribution.

 

Form of Compliance Certificate

 

C-3

      Statement Date that is not netted against Indebtedness in the determination of Net Funded Total Indebtedness or Net Funded Senior Secured Indebtedness, as applicable:    $                
   I.    The amount (but not less than zero) equal to all earnest money deposits associated with potential acquisitions by the Borrower Group as of the Statement Date that are not netted against Indebtedness in the determination of Net Funded Total Indebtedness or Net Funded Senior Secured Indebtedness, as applicable:    $                
   J.    The book value (determined in accordance with GAAP) (but determined without giving effect to any depreciation or amortization) of all other Investments (for the avoidance of doubt, other than Income Properties, Development Properties, Redevelopment Properties and unimproved land) held by the Borrower Group as of such date (exclusive of goodwill and other intangible assets):    $                
   K.    Adjusted Total Assets as of the Statement Date (I.E. divided by 8.25% + I.F. + I.G. + I.H. + I.I. + I.J.) 3 :    $                
   L.    Senior Secured Net Debt to Adjusted Total Assets Ratio (Ratio of I.A to I.K):          :       
      Maximum Senior Secured Net Debt to Adjusted Total Assets Ratio under Section 8.11(a) of the Agreement:      0.40:1.00   
II.    Section 8.11(b) Total Net Debt to Adjusted Total Assets Ratio   
   A.    Net Funded Total Indebtedness as of the Statement Date 4 :    $                
   B.    Adjusted Total Assets as of the Statement Date (see I.K):    $                
   C.    Total Net Debt to Adjusted Total Assets Ratio (Ratio of II.A to II.B):          :       
      Maximum Total Net Debt to Adjusted Total Assets Ratio under Section 8.11(b) of the Agreement 5 :      0.60:1.00   

 

3   Provided that the portion of Adjusted Total Assets attributable to any single Income Property shall not exceed 40.0% of Adjusted Total Assets and the portion of Adjusted Total Assets attributable to any single Redevelopment Property, Development Property or undeveloped land, shall not exceed 30.0% of Adjusted Total Assets.
4   The amount of Unrestricted Cash included in the Net Funded Total Indebtedness shall not exceed $100,000,000.
5   During a Significant Acquisition Period, such ratio shall be increased to 0.65 to 1.00.

 

Form of Compliance Certificate

 

C-4

III.   

Section 8.11(c) Interest Coverage Ratio

  
   A.    Borrower Group EBITDA for the most recently ended period of four consecutive Fiscal Quarters ending on the Statement Date (see I.E) :    $                
   B.    Interest Charges of the Borrower Group for the most recently ended period of four consecutive Fiscal Quarters ending on the Statement Date and excluding Interest Charges related to any amortization of deferred financing costs and original issue discount:    $                
   C.    Interest Coverage Ratio (Ratio of III.A to III.B):          :       
      Minimum Interest Coverage Ratio under Section 8.11(c) of the Agreement:      2.00:1.00   
IV.    Total Net Leverage Ratio   
   A.    Net Funded Total Indebtedness as of the Statement Date: (see II.A):    $                
   B.    Borrower Group EBITDA for the most recently ended period of four consecutive Fiscal Quarters ending on the Statement Date (see I.E):    $                
   C.    Total Net Leverage Ratio (Ratio of IV.A to IV.B):          :       

 

Form of Compliance Certificate

 

C-5

EXHIBIT D-1

ADMINISTRATIVE QUESTIONNAIRE – (US DOLLAR ONLY)

CONFIDENTIAL

 

1.  Information as of date (enter date):

 

 

2.  Borrower or Deal Name: MGM Growth Properties Operating Partnership LP

 

 

3.    Legal Name of Lender of Record for Signature Page :

Markit Entity Identifier (MEI) #:

Fund Manager Name (if applicable):

Legal Address from Tax Document of Lender of Record:

Country:

Address:

City:                 State/Province:                      Postal Code:

 

 

4.  Domestic Funding Address:    5.  Eurodollar Funding Address ( if different than #4 ):
Street Address:    Street Address:
Suite/ Mail Code:    Suite/ Mail Code:
City:                    State:    City:                    State:
Postal Code:                    Country:    Postal Code:                    Country:

 

 

6.  Credit Contact Information:

Syndicate level information (which may contain material non-public information about the Borrower and its related parties or their respective securities will be made available to the Credit Contact(s). The Credit Contacts identified must be able to receive such information in accordance with his/her institution’s compliance procedures and applicable laws, including Federal and State securities laws.

 

Primary Credit Contact :    Secondary Credit Contact :
First Name:    First Name:
Middle Name:    Middle Name:
Last Name:    Last Name:
Title:    Title:
Street Address:    Street Address:
Suite/Mail Code:    Suite/Mail Code:
City:    City:
State:    State:
Postal Code:    Postal Code:
Country:    Country:
Office Telephone #:    Office Telephone #:
Office Facsimile #:    Office Facsimile #:
Work E-Mail Address:    Work E-Mail Address:
SyndTrak E-Mail Address:    SyndTrak E-Mail Address:

Additional SyndTrak User Access :

Enter E-Mail Addresses of any respective contact who should have access to SyndTrak below.

SyndTrak E-Mail Addresses:

 

LOGO

 

1

ADMINISTRATIVE QUESTIONNAIRE – (US DOLLAR ONLY)

CONFIDENTIAL

 

 

Primary Operations Contact:   Secondary Operations Contact:  
First:    MI:   Last:     First:   MI:   Last:  
Title:       Title:      
Street Address:       Street Address:  
Suite/ Mail Code:       Suite/ Mail Code:  
City:    State:       City:   State:    
Postal Code:   Country:     Postal Code:   Country:  
Telephone:      Facsimile:     Telephone:     Facsimile:  
E-Mail Address:       E-Mail Address:      
SyndTrak E-Mail Address:   SyndTrak E-Mail Address:

Does Secondary Operations Contact need copy of notices?   YES    ¨    NO    ¨

 

Letter of Credit Contact:   Draft Documentation Contact or Legal Counsel:
First:    MI:   Last:     First:   MI:   Last:  
Title:          Title:      
Street Address:          Street Address:      
Suite/ Mail Code:          Suite/ Mail Code:      
City:    State:       City:   State:    
Postal Code:      Country:     Postal Code:     Country:  
Telephone:      Facsimile:     Telephone:     Facsimile:  
E-Mail Address:   E-Mail Address:      

7.  Lender’s Fed Wire Payment Instructions:

Pay to:

Bank Name:

ABA #:

City:                State:

Account #:

Account Name:

Attention:

 

 

8.  Lender’s Standby Letter of Credit, Commercial Letter of Credit, and Bankers’ Acceptance Fed Wire Payment Instructions (if applicable):

Pay to :

Bank Name:

ABA #:

City:                State:

Account #:

Account Name:

Attention:

Use Lender’s Fed Wire Payment Instructions in Section #7 above?   YES   ¨    NO   ¨

 

 

 

LOGO

 

2

ADMINISTRATIVE QUESTIONNAIRE – (US DOLLAR ONLY)

CONFIDENTIAL

 

 

9.  Lender’s Organizational Structure and Tax Status

Please refer to the enclosed withholding tax instructions below and then complete this section accordingly:

Lender Taxpayer Identification Number (TIN):           -                                   

Tax Withholding Form Delivered to Bank of America (check applicable one):

W-9 ¨    W-8BEN ¨    W-8BEN-E ¨    W-8ECI ¨    W-8EXP ¨    W-8IMY ¨

Tax Contact:

First:                 MI:                     Last:

Title:

Street Address:

Suite/ Mail Code:

City:                     State:

Postal Code:                     Country:

Telephone:                     Facsimile:

E-Mail Address:

SyndTrak E-Mail Address:

NON–U.S. LENDER INSTITUTIONS

1. Corporations:

If your institution is incorporated outside of the United States for U.S. federal income tax purposes, and is the beneficial owner of the interest and other income it receives, you must complete one of the following three tax forms, as applicable to your institution: a.) Form W-8BEN (Certificate of Foreign Status of Beneficial Owner) or Form W-8BEN-E, b.) Form W-8ECI (Income Effectively Connected to a U.S. Trade or Business), or c.) Form W-8EXP (Certificate of Foreign Government or Governmental Agency).

A U.S. taxpayer identification number is required for any institution submitting a Form W-8 ECI. It is also required on Form W-8BEN or Form W-8BEN-E for certain institutions claiming the benefits of a tax treaty with the U.S. Please refer to the instructions when completing the form applicable to your institution. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms.  An original tax form must be submitted.

2. Flow-Through Entities

If your institution is organized outside the U.S., and is classified for U.S. federal income tax purposes as either a Partnership, Trust, Qualified or Non-Qualified Intermediary, or other non-U.S. flow-through entity, an original Form W-8IMY (Certificate of Foreign Intermediary, Foreign Flow-Through Entity, or Certain U.S. branches for United States Tax Withholding) must be completed by the intermediary together with a withholding statement. Flow-through entities other than Qualified Intermediaries are required to include tax forms for each of the underlying beneficial owners.

Please refer to the instructions when completing this form. In addition, please be advised that U.S. tax regulations do not permit the acceptance of faxed forms.  Original tax form(s) must be submitted .

U.S. LENDER INSTITUTIONS:

If your institution is incorporated or organized within the United States, you must complete and return Form W-9 (Request for Taxpayer Identification Number and Certification).  Please be advised that we require an original form W-9 .

 

LOGO

 

3

ADMINISTRATIVE QUESTIONNAIRE – (US DOLLAR ONLY)

CONFIDENTIAL

 

 

Pursuant to the language contained in the tax section of the Credit Agreement, the applicable tax form for your institution must be completed and returned on or prior to the date on which your institution becomes a lender under this Credit Agreement. Failure to provide the proper tax form when requested will subject your institution to U.S. tax withholding.

* Additional guidance and instructions as to where to submit this documentation can be found at this link:

 

LOGO

 

 

10.  Bank of America’s Payment Instructions:

 

Pay to:    Bank of America, N.A.
   ABA # 026009593
   New York, NY
   Account #: 001292000883
   Attn: Corporate Credit Services
   Ref: MGM Growth Properties Operating Partnership LP

 

LOGO

 

283

EXHIBIT D-2

ASSIGNMENT AND ASSUMPTION

This Assignment and Assumption (this “ Assignment and Assumption ”) is dated as of the Effective Date set forth below and is entered into by and between [the][each] 1 Assignor identified in item 1 below ([the][each, an] “ Assignor ”) and [the][each] 2 Assignee identified in item 2 below ([the][each, an] “ Assignee ”). [It is understood and agreed that the rights and obligations of [the Assignors][the Assignees] 3 hereunder are several and not joint.] 4 Capitalized terms used but not defined herein shall have the meanings given to them in the Credit Agreement identified below (the “ Credit Agreement ”), receipt of a copy of which is hereby acknowledged by the Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference and made a part of this Assignment and Assumption as if set forth herein in full.

For an agreed consideration, [the][each] Assignor hereby irrevocably sells and assigns to [the Assignee][the respective Assignees], and [the][each] Assignee hereby irrevocably purchases and assumes from [the Assignor][the respective Assignors], subject to and in accordance with the Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the Administrative Agent as contemplated below (i) all of [the Assignor’s][the respective Assignors’] rights and obligations in [its capacity as a Lender][their respective capacities as Lenders] under the Credit Agreement and any other documents or instruments delivered pursuant thereto to the extent related to the amount and percentage interest identified below of all of such outstanding rights and obligations of [the Assignor][the respective Assignors] under the respective facilities identified below (including, without limitation, the Letters of Credit included in such facilities) and (ii) to the extent permitted to be assigned under applicable law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a Lender)][the respective Assignors (in their respective capacities as Lenders)] against any Person, whether known or unknown, arising under or in connection with the Credit Agreement, any other documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in any way based on or related to any of the foregoing, including, but not limited to, contract claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights and obligations sold and assigned by [the][any] Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being referred to herein collectively as [the][an] “ Assigned Interest ”). Each such sale and assignment is without recourse to [the][any] Assignor and, except as expressly

 

1   For bracketed language here and elsewhere in this form relating to the Assignor(s), if the assignment is from a single Assignor, choose the first bracketed language. If the assignment is from multiple Assignors, choose the second bracketed language.
2   For bracketed language here and elsewhere in this form relating to the Assignee(s), if the assignment is to a single Assignee, choose the first bracketed language. If the assignment is to multiple Assignees, choose the second bracketed language.
3   Select as appropriate.
4   Include bracketed language if there are either multiple Assignors or multiple Assignees.

 

Form of Assignment and Assumption

 

D-2-1

provided in this Assignment and Assumption, without representation or warranty by [the][any] Assignor.

 

1.   Assignor[s]:   

 

  
2.   Assignee[s]:   

 

  
    

 

  
  [for each Assignee, indicate [Affiliate][Approved Fund] of [ identify Lender ]]
3.   Borrower : MGM Growth Properties Operating Partnership LP, a Delaware limited partnership
4.   Administrative Agent : Bank of America, N.A., as the administrative agent under the Credit Agreement
5.   Credit Agreement : Credit Agreement, dated as of April 25, 2016 among the Borrower, the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and an L/C Issuer.
6.   Assigned Interest:   

 

Assignor[s] 5

   Assignee[s] 6    Facility
Assigned 7 		   Aggregate
Amount of
Commitment/
Loans for all
Lenders 8 		     Amount of
Commitment/
Loans
Assigned 		   Percentage
Assigned of
Commitment/
Loans 9 		    CUSIP
Number
         $                                      %   
         $                                      %   
         $                                      %   

 

[7. Trade Date:                                         ] 10

 

5   List each Assignor, as appropriate.
6   List each Assignee, as appropriate.
7   Fill in the appropriate terminology for the Classes of Commitment/Loans under the Credit Agreement that are being assigned under this Assignment (e.g. “Closing Date Revolving Commitment,” “Term B Commitment,” etc.).
8   Amounts in this column and in the column immediately to the right to be adjusted by the counterparties to take into account any payments or prepayments made between the Trade Date and the Effective Date.
9   Set forth, to at least 9 decimals, as a percentage of the Commitment/Loans of all Lenders thereunder.
10   To be completed if the Assignor and the Assignee intend that the minimum assignment amount is to be determined as of the Trade Date.

 

Form of Assignment and Assumption

 

D-2-2

Effective Date:                     , 20     [TO BE INSERTED BY ADMINISTRATIVE AGENT AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]

The terms set forth in this Assignment and Assumption are hereby agreed to:

 

ASSIGNOR
[NAME OF ASSIGNOR]
By:  

 

  Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:  

 

  Title:

[Consented to and Accepted:

 

BANK OF AMERICA, N.A., as Administrative Agent
By:  

 

  Title:
Consented to:
MGM GROWTH PROPERTIES OPERATING PARTNERSHIP LP
By:  

 

  Title:] 11

 

11   Include consents (including, without limitation, consent of any L/C Issuer) only as required by Section 11.06 of the Credit Agreement.

 

Form of Assignment and Assumption

 

D-2-3

ANNEX 1 TO ASSIGNMENT AND ASSUMPTION

MGM Growth Properties Operating Partnership LP

Credit Agreement

STANDARD TERMS AND CONDITIONS FOR

ASSIGNMENT AND ASSUMPTION

1. Representations and Warranties .

1.1 Assignor . [The][Each] Assignor (a) represents and warrants that (i) it is the legal and beneficial owner of [the][[the relevant] Assigned Interest, (ii) [the][such] Assigned Interest is free and clear of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any statements, warranties or representations made in or in connection with the Credit Agreement or any other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness, sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its Subsidiaries or Affiliates or any other Person of any of their respective obligations under any Loan Document.

1.2 Assignee . [The][Each] Assignee (a) represents and warrants that (i) it has full power and authority, and has taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate the transactions contemplated hereby and to become a Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under Section 11.06(b)(i) , (iii) and (v) of the Credit Agreement (subject to such consents, if any, as may be required under Section 11.06(b)(iii) of the Credit Agreement), (iii) from and after the Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder and, to the extent of [the][the relevant] Assigned Interest, shall have the obligations of a Lender thereunder, (iv) it is sophisticated with respect to decisions to acquire assets of the type represented by [the][such] Assigned Interest and either it, or the Person exercising discretion in making its decision to acquire [the][such] Assigned Interest, is experienced in acquiring assets of such type, (v) it has received a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive copies of the most recent financial statements delivered pursuant to Section 7.01(a) and (b) thereof, as applicable, and such other documents and information as it deems appropriate to make its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or any other Lender and based on such documents and information as it has deemed appropriate, made its own credit analysis and decision to enter into this Assignment and Assumption and to purchase [the][such] Assigned Interest, and (vii) attached hereto is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement, duly completed and executed by [the][such] Assignee; and (b) agrees that (i) it will, independently and without reliance upon the Administrative Agent, [the][any] Assignor or any other Lender, and based on such documents

 

Form of Assignment and Assumption

 

D-2-4

and information as it shall deem appropriate at the time, continue to make its own credit decisions in taking or not taking action under the Loan Documents, and (ii) it will perform in accordance with their terms all of the obligations which by the terms of the Loan Documents are required to be performed by it as a Lender.

2. Payments . From and after the Effective Date, the Administrative Agent shall make all payments in respect of [the][each] Assigned Interest (including payments of principal, interest, fees and other amounts) to [the][the relevant] Assignor for amounts which have accrued to but excluding the Effective Date and to [the][the relevant] Assignee for amounts which have accrued from and after the Effective Date.

3. General Provisions . This Assignment and Assumption shall be binding upon, and inure to the benefit of, the parties hereto and their respective successors and assigns. This Assignment and Assumption may be executed in any number of counterparts, which together shall constitute one instrument. Delivery of an executed counterpart of a signature page of this Assignment and Assumption by telecopy shall be effective as delivery of a manually executed counterpart of this Assignment and Assumption. This Assignment and Assumption and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Assignment and Assumption and the transactions contemplated hereby shall each be governed by, and construed in accordance with, the law of the State of New York.

 

Form of Assignment and Assumption

 

D-2-5

EXHIBIT E-1

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of April 25, 2016 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Borrower ”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and an L/C Issuer.

Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E (or W-8BEN, as applicable). By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF LENDER]
By:  

 

Name:  
Title:  

Date:             , 20[    ]

 

U.S. Tax Compliance Certificate

 

E-1

EXHIBIT E-2

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Not Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of April 25, 2016 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Borrower ”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and an L/C Issuer.

Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record and beneficial owner of the participation in respect of which it is providing this certificate, (ii) it is not a bank within the meaning of Section 881(c)(3)(A) of the Code, (iii) it is not a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code, and (iv) it is not a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with a certificate of its non-U.S. Person status on IRS Form W-8BEN-E (or W-8BEN, as applicable). By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender in writing, and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF PARTICIPANT]
By:  

 

Name:  
Title:  

Date:             , 20[    ]

 

U.S. Tax Compliance Certificate

 

E-2

EXHIBIT E-3

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Participants That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of April 25, 2016 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Borrower ”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and an L/C Issuer.

Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the participation in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such participation, (iii) with respect such participation, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished its participating Lender with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN-E (or W-8BEN, as applicable) or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN-E (or W-8BEN, as applicable) from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform such Lender and (2) the undersigned shall have at all times furnished such Lender with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF PARTICIPANT]
By:  

 

Name:  
Title:  

Date:             , 20[    ]

 

U.S. Tax Compliance Certificate

 

E-3

EXHIBIT E-4

FORM OF

U.S. TAX COMPLIANCE CERTIFICATE

(For Foreign Lenders That Are Partnerships For U.S. Federal Income Tax Purposes)

Reference is hereby made to the Credit Agreement dated as of April 25, 2016 (as amended, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Borrower ”), the Lenders from time to time party thereto, and Bank of America, N.A., as Administrative Agent and an L/C Issuer.

Pursuant to the provisions of Section 3.01(e) of the Credit Agreement, the undersigned hereby certifies that (i) it is the sole record owner of the Loan(s) (as well as any Note(s) evidencing such Loan(s)) in respect of which it is providing this certificate, (ii) its direct or indirect partners/members are the sole beneficial owners of such Loan(s) (as well as any Note(s) evidencing such Loan(s)), (iii) with respect to the extension of credit pursuant to this Credit Agreement or any other Loan Document, neither the undersigned nor any of its direct or indirect partners/members is a bank extending credit pursuant to a loan agreement entered into in the ordinary course of its trade or business within the meaning of Section 881(c)(3)(A) of the Code, (iv) none of its direct or indirect partners/members is a ten percent shareholder of the Borrower within the meaning of Section 871(h)(3)(B) of the Code and (v) none of its direct or indirect partners/members is a controlled foreign corporation related to the Borrower as described in Section 881(c)(3)(C) of the Code.

The undersigned has furnished the Administrative Agent and the Borrower with IRS Form W-8IMY accompanied by one of the following forms from each of its partners/members that is claiming the portfolio interest exemption: (i) an IRS Form W-8BEN-E (or W-8BEN, as applicable) or (ii) an IRS Form W-8IMY accompanied by an IRS Form W-8BEN-E (or W-8BEN, as applicable) from each of such partner’s/member’s beneficial owners that is claiming the portfolio interest exemption. By executing this certificate, the undersigned agrees that (1) if the information provided on this certificate changes, the undersigned shall promptly so inform the Borrower and the Administrative Agent, and (2) the undersigned shall have at all times furnished the Borrower and the Administrative Agent with a properly completed and currently effective certificate in either the calendar year in which each payment is to be made to the undersigned, or in either of the two calendar years preceding such payments.

Unless otherwise defined herein, terms defined in the Credit Agreement and used herein shall have the meanings given to them in the Credit Agreement.

 

[NAME OF LENDER]
By:  

 

Name:  
Title:  

 

U.S. Tax Compliance Certificate

 

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Date:             , 20[    ]

 

U.S. Tax Compliance Certificate

 

E-5

EXHIBIT F

FORM OF ASSUMPTION AGREEMENT

THIS ASSUMPTION AGREEMENT (“ Assumption ”) is executed as of             ,         , by                     , a                      (“ New Borrower ”), and MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Original Borrower ”), 1 and delivered to the Administrative Agent pursuant to the Credit Agreement, dated as of April 25, 2016 (either as originally executed, or as it may from time to time be supplemented, modified, amended, restated or extended, the “ Credit Agreement ”), among the Original Borrower, 2 each lender from time to time party thereto, and Bank of America, N.A., as Administrative Agent and an L/C Issuer. This Assumption is subject to the Credit Agreement including, without limitation, Section 2.19 thereof. Terms used but not defined in this Assumption shall have the meanings defined for those terms in the Credit Agreement.

By this Assumption, the Original Borrower designates New Borrower as an additional joint and several direct “Borrower” pursuant to Section 2.19 of the Credit Agreement.

The New Borrower, as contemplated by Section 2.19 of the Credit Agreement, hereby assumes, on a joint and several basis with the Original Borrower and each additional “Borrower” that has previously, or may from time to time hereafter, join the Credit Agreement as a “Borrower”[, except as set forth in Exhibit A hereto (but without limiting New Borrower’s obligations as a Guarantor of the Obligations)] 3 , (i) each and every one of the covenants, promises, agreements, terms, obligations (including the obligations of the “Borrower” under the Notes and under the Credit Agreement), duties and liabilities of the “Borrower” under the Credit Agreement and the other Loan Documents applicable to the “Borrower” and (ii) all liability of the “Borrower” related to each representation, warranty, covenant or obligation (including the obligation to repay the Obligations) made by the “Borrower” in the Credit Agreement and each other Loan Document, in each case effective immediately upon the Closing Date. Without limiting the generality of the foregoing, the New Borrower hereby expressly, jointly and severally with the Original Borrower and each additional “Borrower” that has previously, or may from time to time hereafter, join the Credit Agreement as a “Borrower” [, except as set forth in Exhibit A hereto (but without limiting New Borrower’s obligations as a Guarantor of the Obligations)] 4 , (x) assumes, and agrees to perform and observe and be bound by, each and every one of the covenants, promises, agreements, terms, obligations, duties and liabilities (including the obligation to repay the Obligations) of the “Borrower” under the Credit Agreement and each other Loan Document applicable to the “Borrower” and (y) accepts and assumes all liability of the “Borrower” related to each representation, warranty, covenant or obligation made by the “Borrower” in the Credit Agreement and each other Loan Document. Immediately upon completion of the assumption pursuant to Section 2.19 of the Credit Agreement, and without the

 

1   Add each additional Borrower that has previously joined the Agreement.
2   Add each additional Borrower that has previously joined the Agreement.
3   Delete if the Obligations of the New Borrower will not be limited.
4  

Delete if the Obligations of the New Borrower will not be limited.

 

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need for any further action, the New Borrower shall be bound as the “Borrower” under the Credit Agreement and all references to the “Borrower” shall be deemed to include the New Borrower.

Each of the parties hereto acknowledges and agrees that (i) nothing in this Assumption shall release, relieve or reduce the Obligations of any existing Borrower under the Credit Agreement or the other Loan Documents, each of whom shall remain bound as a “Borrower” thereunder, and (ii) the Credit Agreement and the other Loan Documents shall remain in full force and effect and are hereby ratified and confirmed and this Assumption shall not be considered a novation. The execution, delivery and performance of this Assumption shall not constitute a waiver of any provision of, or operate as a waiver of any right, power or remedy of, the Administrative Agent or any Lender under any Loan Document.

It is a condition precedent to this Assumption that it be accompanied or preceded by the following:

1. Term A Notes, substantially in the form of Exhibit B-1 to the Credit Agreement, executed by New Borrower, as appropriate

2. Term B Notes, substantially in the form of Exhibit B-2 to the Credit Agreement, executed by New Borrower, as appropriate;

3. Revolving Notes, substantially in the form of Exhibit B-3 to the Credit Agreement, executed by New Borrower, as appropriate; 5

4. A certificate of good standing of New Borrower in the jurisdiction of its incorporation or organization;

5. A certified resolution of the board of directors or other governing body of New Borrower authorizing the execution and delivery of this Assumption and the Notes referred to above;

6. A written consent to this Assumption executed by each Guarantor;

7. Appropriate written legal opinions similar to the opinions with respect to the New Borrower and this Assumption covering matters similar to those covered in the opinions delivered on the Closing Date; and

8. Such other information, certificates or legal opinions as the Administrative Agent or the Required Lenders may reasonably request.

Original Borrower and New Borrower represent and warrant, jointly and severally, that (a) New Borrower is a Guarantor; and (b) all statements and representations contained in this Assumption and the accompanying documents are true as of the date this Assumption is executed.

 

 

5   Add each additional Class of Notes then outstanding.

 

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This Assumption shall become effective if and when countersigned by the Administrative Agent, whereupon New Borrower shall become a Borrower. This Assumption and any claims, controversy, dispute or cause of action (whether in contract or tort or otherwise) based upon, arising out of or relating to this Assumption and the transactions contemplated hereby shall each be governed by, and construed in accordance with, the law of the State of New York.

The provisions set forth in the Credit Agreement related to Expenses, Indemnity, Counterparts, Severability, Submission to Jurisdiction, Waiver of Venue, Service of Process and Waiver of Jury Trial shall apply to, and are hereby incorporated by reference in, this Assumption as if fully set forth herein.

IN WITNESS WHEREOF the undersigned have caused this Assumption to be duly executed as of the date first written above.

 

[New Borrower]
By:  

 

Name:  

 

Title:  

 

Consented to and Acknowledged:

 

MGM Growth Properties Operating Partnership LP
By:  

 

Name:  
Title:  
[ Each Other Borrower ]
By:  

 

Name:  
Title:  

 

Form of Assumption Agreement

 

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Accepted:

 

BANK OF AMERICA, N.A., as

Administrative Agent

By:  

 

Title:  
[ Each Revolving Lender ]
By:  

 

Name:  
Title:  

 

Form of Assumption Agreement

 

F-4

[Exhibit A

Limited Obligations of New Borrower] 6

 

6   Include only if applicable.

 

Form of Assumption Agreement

 

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EXHIBIT G

FORM OF JOINT BORROWER PROVISIONS

Reference is made to that certain Credit Agreement dated as of April 25, 2016 (as amended, extended, renewed, supplemented or otherwise modified from time to time, the “ Credit Agreement ”), among MGM Growth Properties Operating Partnership LP, a Delaware limited partnership (the “ Original Borrower ”), each lender from time to time party thereto (collectively, the “ Lenders ” and individually, a “ Lender ”), and Bank of America, N.A., as Administrative Agent and an L/C Issuer. These Joint Borrower Provisions are attached to and made a part of the Credit Agreement as Exhibit G thereto. Capitalized terms used but not defined herein are used with the meanings set forth for those terms in the Credit Agreement. The Original Borrower and each Person that becomes an additional “Borrower” after the Closing Date in accordance with Section 2.19 of the Credit Agreement (each of the Original Borrower and each such Person, individually, a “ Borrower ” and collectively, the “ Borrowers ”) each agree that:

1. Requests for Credit Extensions . Requests for Credit Extensions may be made by one or more Borrowers, and the Administrative Agent and the Lenders are authorized to honor and rely upon any such request or any instructions received from any Responsible Officer of any such Borrower. It is expressly agreed and understood by each Borrower that the Administrative Agent, the L/C Issuers and the Lenders shall have no responsibility to inquire into the apportionment, allocation or disposition of any Loans or Letters of Credit made to any Borrower. Except as otherwise provided in the Assumption Agreement executed by an additional Borrower upon its becoming a “Borrower” pursuant to Section 2.19 after the Closing Date, the Obligations incurred by the Borrowers are the joint and several obligation of each of them, notwithstanding the crediting of any Loan or Letter of Credit to the account of a particular Borrower.

2. Implementation . For the purpose of implementing the joint borrower provisions of the Loan Documents, each of the Borrowers hereby irrevocably appoints the others as its agent and attorney-in-fact for all purposes of the Loan Documents, including without limitation the giving and receiving of notices and other communications, the making of Requests for Credit Extensions, the execution and delivery of certificates, the receiving and allocating of disbursements from the Administrative Agent and the Lenders and the issuance of Letters of Credit by the L/C Issuers.

3. Acknowledgment and Indemnity Regarding Joint Handling . It is understood and agreed that the handling of this credit facility on a joint borrowing basis as set forth in the Credit Agreement is solely as an accommodation to the Borrowers and at the request of the Borrowers, and that the Administrative Agent, the L/C Issuers and the Lenders shall incur no liability to the Borrowers or any other Person as a result thereof. To induce the Administrative Agent, the L/C Issuers and the Lenders to do so, and in consideration thereof, the Borrowers hereby agree to indemnify the Administrative Agent, each L/C Issuer and each Lender and hold them harmless from and against any and all liabilities, expenses, losses, damages and/or claims of damage or injury asserted against them by the Borrowers or by any other Person arising from or incurred by reason of the joint handling of the financing arrangements provided in the Credit Agreement, reliance by the Administrative Agent, the L/C Issuers and the Lenders on any requests or

 

Form of Joint Borrower Provisions

 

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instructions from the Borrowers, or any other similar action taken by the Administrative Agent, any L/C Issuer or any Lender under the Loan Documents.

4. Representation and Warranty . Each Borrower represents and warrants to the Administrative Agent, the L/C Issuers and the Lenders that the request for joint handling of the Obligations is made because the Borrowers are engaged in an integrated operation that requires financing on a basis permitting the availability of credit from time to time to the Borrowers as required for the continued successful operation of each of them and their integrated operations. Each Borrower expects to derive benefit, directly or indirectly, from such availability because the successful operation of the Borrowers and the Guarantors is dependent on the continued successful performance of the functions of the integrated group.

Each Borrower represents and warrants to the Administrative Agent, each L/C Issuer and each Lender that (i) it has established adequate means of obtaining, on a continuing basis, financial and other information pertaining to the business, operations and condition (financial and otherwise) of each Borrower, its Subsidiaries and its Property, and (ii) it now is and hereafter will be completely familiar with the business, operations and condition (financial and otherwise) of such Persons and their Property. Each Borrower hereby waives and relinquishes any duty on the part of the Administrative Agent, any L/C Issuer or any Lender to disclose to it any matter, fact or thing relating to the business, operations or condition (financial or otherwise) of Borrowers, their Subsidiaries or their Property, whether now or hereafter known by the Administrative Agent, any L/C Issuer or any Lender during the term of the Credit Agreement.

5. Waivers and Consents . Each Borrower consents and agrees that the Administrative Agent, the L/C Issuers and the Lenders may, at any time and from time to time, without notice or demand to any of them, and without affecting the enforceability or security hereof or of any other Loan Document:

(a) supplement, modify, amend, extend, renew, accelerate, or otherwise change the time for payment or the terms of the Obligations or any part thereof, including any increase or decrease of the rate(s) of interest thereon;

(b) supplement, modify, amend or waive, or enter into or give any agreement, approval or consent with respect to, the Obligations or any part thereof or any of the Loan Documents or any additional security or guaranties, or any condition, covenant, default, remedy, right, representation or term thereof or thereunder;

(c) accept new or additional instruments, documents or agreements in exchange for or relative to any of the Loan Documents or the Obligations or any part thereof;

(d) accept partial payments on the Obligations;

(e) receive and hold additional security or guaranties for the Obligations or any part thereof;

(f) release, reconvey, terminate, waive, abandon, subordinate, exchange, substitute, transfer and enforce any security or guaranties, and apply any security and

 

Form of Joint Borrower Provisions

 

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direct the order or manner of sale thereof as the Administrative Agent, the L/C Issuers and the Lenders in their sole and absolute discretion may determine;

(g) release any Borrower, any Party, any guarantor or any other Person from any personal liability with respect to the Obligations or any part thereof;

(h) settle, release on terms satisfactory to the Administrative Agent, the L/C Issuers and the Lenders or by operation of applicable Laws or otherwise liquidate or enforce any Obligations and any security or guaranty in any manner, consent to the transfer of any security and bid and purchase at any sale; and

(i) consent to the merger, change or any other restructuring or termination of the corporate or other existence of any Person, and correspondingly restructure the Obligations, and any such merger, change, restructuring or termination shall not affect the liability of any Person under any Loan Document to which the Borrowers are a party or the enforceability hereof or thereof with respect to all or any part of the Obligations;

provided that nothing contained herein shall permit the Administrative Agent to amend the terms of any Loan Document without the written consent of all of the Parties thereto (except as otherwise provided therein).

Upon the occurrence of and during the continuance of any Event of Default, the Administrative Agent, the L/C Issuers and the Lenders may enforce the Credit Agreement and the other Loan Documents independently as to each Borrower and independently of any other remedy or security the Administrative Agent, any L/C Issuer or any Lender at any time may have or hold in connection with the Obligations, and it shall not be necessary for them to marshal assets in favor of any Borrower or any other Person or to proceed upon or against and/or exhaust any other security or remedy before proceeding to enforce any Loan Document or these Joint Borrower Provisions. Each Borrower expressly waives any right to require the Administrative Agent, any L/C Issuer or any Lender to marshal assets in favor of any Borrower or any other Person or to proceed against any Person or any collateral provided thereby, and agrees that the Administrative Agent, the L/C Issuers and the Lenders may proceed against each Borrower, any other Person and/or the collateral in such order as they determine in their sole and absolute discretion. The Administrative Agent (with the consent or at the direction of the Required Lenders) may file a separate action or actions against each Borrower, whether action is brought or prosecuted with respect to any other security or against any other Person, or whether any other Person is joined in any such action or actions. Each Borrower agrees that the Administrative Agent, the L/C Issuers and the Lenders may deal with any Borrower or any other Person in connection with the Obligations or otherwise, or alter any contracts or agreements now or hereafter existing between any of them (in each case, with the consent of the Parties to such contracts or agreements), in any manner whatsoever, all without in any way altering or affecting the security of the Loan Documents. Each Borrower expressly waives the benefit of any statute(s) of limitations affecting its liability under the Loan Documents or the enforcement of the Obligations created therein. The Administrative Agent’s, the L/C Issuers’ and the Lenders’ rights hereunder and under the other Loan Documents shall be reinstated and revived, and the enforceability of the Credit Agreement and the other Loan Documents shall continue, with respect to any amount at any time paid on account of the Obligations which thereafter shall be required to be restored or

 

Form of Joint Borrower Provisions

 

G-3

returned by them upon the bankruptcy, insolvency or reorganization of any Borrower, all as though such amount had not been paid. Each Borrower expressly waives any and all defenses now or hereafter arising or asserted by reason of (a) any incapacity, lack of authority or disability or other defense of any other Person with respect to the Obligations, (b) the unenforceability or invalidity of the Obligations or of any security or guaranty for the Obligations or the lack of perfection or continuing perfection or failure of priority of any security for the Obligations, (c) the cessation for any cause whatsoever of the liability of any Borrower (other than the satisfaction of the Termination Conditions and the payment in full of all Secured Obligations (as defined in the Security Agreement) arising under any Secured Hedge Agreement or Secured Cash Management Agreement), (d) any failure of the Administrative Agent, any L/C Issuer or any Lender to marshal assets in favor of any Borrower or any other Person, (e) any failure of the Administrative Agent, any L/C Issuer or any Lender to give notice of sale or other disposition to any Borrower or any other Person or any defect in any notice that may be given in connection with any sale or disposition, (f) any failure of the Administrative Agent, any L/C Issuer or any Lender to comply with applicable Laws in connection with the sale or other disposition of any collateral or other security for any Obligation, including without limitation any failure of the Administrative Agent, any L/C Issuer or any Lender to conduct a commercially reasonable sale or other disposition of any collateral or other security for any Obligation, (g) any act or omission of the Administrative Agent, any L/C Issuer or any Lender or other Persons that directly or indirectly results in or aids the discharge or release of any Borrower, any guarantor or any other Person or the Obligations or any other security or guaranty therefor by operation of Law or otherwise, (h) any Law which provides that the Obligation of a surety or guarantor must neither be larger in amount nor in other respects more burdensome than that of the principal or which reduces a surety’s or guarantor’s Obligation in proportion to the principal Obligation, (i) any failure of the Administrative Agent, any L/C Issuer or any Lender to file or enforce a claim in any bankruptcy or other proceeding with respect to any Person, (j) the election by the Administrative Agent, any L/C Issuer or any Lender, in any bankruptcy proceeding of any Person, of the application or non-application of Section 1111(b)(2) of the United States Bankruptcy Code, (k) any extension of credit or the grant of any Lien under Section 364 of the United States Bankruptcy Code, (1) any use of cash collateral under Section 363 of the United States Bankruptcy Code, (m) any agreement or stipulation with respect to the provision of adequate protection in any bankruptcy proceeding of any Person, (n) the avoidance of any Lien in favor of the Administrative Agent, any L/C Issuer or any Lender for any reason, (o) any bankruptcy, insolvency, reorganization, arrangement, readjustment of debt, liquidation or dissolution proceeding commenced by or against any Person, including any discharge of, or bar or stay against collecting, all or any of the Obligations (or any interest thereon) in or as a result of any such proceeding, (p) Administrative Agent’s or any other Secured Party’s errors or omissions in the administration of the Obligations, except behavior that amounts to gross negligence, willful misconduct or bad faith, (q) to the fullest extent permitted by law, any principles or provisions of law, statutory or otherwise, that are or might be in conflict with the terms of these Joint Borrower Provisions, or (r) any other act or thing or omission, or delay to do any other act or thing, which may or might in any manner or to any extent vary the risk of a Borrower as an obligor in respect of the Obligations. Each Borrower expressly waives all setoffs and counterclaims and all presentments, demands for payment or performance, notices of nonpayment or nonperformance, protests, notices of protest, notices of dishonor and all other notices or demands of any kind or nature whatsoever with respect to the Obligations (except any

 

Form of Joint Borrower Provisions

 

G-4

of the same which are expressly provided for in the Loan Documents), and all notices of acceptance of the Credit Agreement or of the existence, creation or incurring of new or additional Obligations.

6. Waiver of Rights of Subrogation . Notwithstanding anything to the contrary elsewhere contained herein or in any other Loan Document to which any Borrower is a party, the Borrowers hereby waive with respect to each other and their respective successors and assigns (including any surety) and any other Person any and all rights at Law or in equity, to subrogation, to reimbursement, to exoneration, to contribution, to indemnity, to setoff or to any other rights that could accrue to a surety against a principal, to a guarantor against a maker or obligor, to an accommodation party against the party accommodated, or to a holder or transferee against a maker and which any Borrower may have or hereafter acquire against each other or any other Person in connection with or as a result of their execution, delivery and/or performance of the Credit Agreement, these Joint Borrower Provisions or any other Loan Document to which any of them is a party. The Borrowers agree that they shall not have or assert any such rights against one another or their respective successors and assigns or any other Person (including any surety), either directly or as an attempted setoff to any action commenced against any Borrower by any Borrower (as Borrowers or in any other capacity) or any other Person. The Borrowers hereby acknowledge and agree that this waiver is intended to benefit the Administrative Agent, the L/C Issuers and the Lenders and shall not limit or otherwise affect the Borrowers’ liabilities hereunder or under any other Loan Document to which any of them is a party, or the enforceability hereof or thereof.

7. Understandings with Respect to Waivers and Consents . The Borrowers each warrant and agree that each of the waivers and consents set forth herein are made with full knowledge of their significance and consequences, with the understanding that events giving rise to any defense waived may diminish, destroy or otherwise adversely affect rights which they otherwise may have against each other, the Administrative Agent, the L/C Issuers, the Lenders or others, or against collateral, and that, under the circumstances, the waivers and consents herein given are reasonable and not contrary to public policy or Law. If any of the waivers or consents herein are determined to be contrary to any applicable Law or public policy, such waivers and consents shall be effective to the maximum extent permitted by Law.

 

Form of Joint Borrower Provisions

 

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