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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
(Mark One)
☒ ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
FORM 10-K
For the fiscal year ended December 31, 2022
or
☐ TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934
For the transition period from to
Commission File Number 001-36124
Gaming and Leisure Properties, Inc.
(Exact name of registrant as specified in its charter)
Pennsylvania
(State or other jurisdiction of
incorporation or organization)
46-2116489
(I.R.S. Employer
Identification No.)
845 Berkshire Blvd., Suite 200
Wyomissing, PA 19610
(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: 610 401-2900
Securities registered pursuant to Section 12(b) of the Act:
Title of each class
Trading Symbol(s)
Name of each exchange on which registered
Common Stock, par value $.01 per share
GLPI
NASDAQ
Securities registered pursuant to Section 12(g) of the Act:
None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act. Yes ☒ No ☐
Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act. Yes ☐ No ☒
Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes ☒ No ☐
Indicate by check mark whether the registrant has submitted electronically every Interactive Data File required to be submitted pursuant to Rule 405 of Regulation S-T (§232.405 of this
chapter) during the preceding 12 months (or for such shorter period that the registrant was required to submit such files). Yes ☒ No ☐
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See
the definitions of "large accelerated filer", "accelerated filer", "smaller reporting company," and "emerging growth company" in Rule 12b-2 of the Exchange Act:
Large accelerated filer
Non-accelerated filer
☒
☐
Accelerated filer
☐ Emerging growth company ☐
Smaller reporting company
☐
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting
standards provided pursuant to Section13(a) of the Exchange Act. ☐
Indicate by check mark whether the registrant has filed a report on and attestation to its management’s assessment of the effectiveness of its internal control over financial reporting
under Section 404(b) of the Sarbanes-Oxley Act (15 U.S.C. 7262(b)) by the registered public accounting firm that prepared or issued its audit report. ☒
Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act). Yes ☐ No ☒
As of June 30, 2022 (the last business day of the registrant's most recently completed second fiscal quarter), the aggregate market value of the voting common stock held by non-
affiliates of the registrant was approximately $10.8 billion. Such aggregate market value was computed by reference to the closing price of the common stock as reported on the NASDAQ Global
Select Market on June 30, 2022.
The number of shares of the registrant's common stock outstanding as of February 14, 2023 was 262,354,477.
DOCUMENTS INCORPORATED BY REFERENCE
Portions of the registrant's definitive proxy statement for its 2023 annual meeting of shareholders (when it is filed) will be incorporated by reference into Part III of this Annual Report
on Form 10-K.
Table of Contents
PART I
ITEM 1.
ITEM 1A.
ITEM 1B.
ITEM 2.
ITEM 3.
ITEM 4.
PART II
ITEM 5.
ITEM 6.
ITEM 7.
ITEM 7A.
ITEM 8.
ITEM 9.
ITEM 9A.
ITEM 9B.
ITEM 9C.
PART III
ITEM 10.
ITEM 11.
ITEM 12.
ITEM 13.
ITEM 14.
PART IV
ITEM 15.
ITEM 16.
TABLE OF CONTENTS
BUSINESS
RISK FACTORS
UNRESOLVED STAFF COMMENTS
PROPERTIES
LEGAL PROCEEDINGS
MINE SAFETY DISCLOSURES
MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED SHAREHOLDER MATTERS AND ISSUER
PURCHASES OF EQUITY SECURITIES
RESERVED
MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE
CONTROLS AND PROCEDURES
OTHER INFORMATION
DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
EXECUTIVE COMPENSATION
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDERS MATTERS
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE
PRINCIPAL ACCOUNTING FEES AND SERVICES
EXHIBITS, FINANCIAL STATEMENT SCHEDULE
FORM 10-K SUMMARY
EXHIBIT INDEX
SIGNATURES
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IMPORTANT FACTORS REGARDING FORWARD-LOOKING STATEMENTS
Forward-looking statements in this document are subject to known and unknown risks, uncertainties and other factors that may cause actual results,
performance or achievements of Gaming and Leisure Properties, Inc. ("GLPI") and its subsidiaries (collectively, the "Company") to be materially different
from any future results, performance or achievements expressed or implied by such forward-looking statements. Forward-looking statements include
information concerning the Company's business strategy, plans, goals and objectives.
Forward-looking statements in this document include, but are not limited to, statements regarding the extent and duration of the economic disruptions
related to the novel coronavirus COVID-19 (including variants thereof, "COVID-19") global pandemic on our tenants' operations and our taxable real
estate investment trust ("REIT") subsidiaries' operations and statements regarding our ability to grow our portfolio of gaming facilities. In addition,
statements preceded by, followed by or that otherwise include the words "believes," "expects," "anticipates," "intends," "projects," "estimates," "plans,"
"may increase," "may fluctuate," and similar expressions or future or conditional verbs such as "will," "should," "would," "may" and "could" are generally
forward-looking in nature and not historical facts. You should understand that the following important factors could affect future results and could cause
actual results to differ materially from those expressed in such forward-looking statements:
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the impact that higher inflation rates and uncertainty with respect to the future state of the economy could have on discretionary consumer
spending, including the casino operations of our tenants;
the impact of rising interest rates, inflation, and the impact of our recent transition to the Secured Overnight Financing Rate ("SOFR");
unforeseen consequences related to United States government monetary policies and stimulus packages on inflation rates and economic growth;
the availability of and the ability to identify suitable and attractive acquisition and development opportunities and the ability to acquire and lease
the respective properties on favorable terms;
the degree and nature of our competition;
the ability to receive, or delays in obtaining, the regulatory approvals required to own and/or operate our properties, or other delays or
impediments to completing our planned acquisitions or projects;
COVID-19 had, and may continue to have, a significant impact on our tenants' financial conditions and operations;
the current and uncertain future impact of the COVID-19 outbreak or a new pandemic, including its effect on the ability or desire of people to
gather in large groups (including in casinos), which could continue to impact our financial results, operations, outlooks, plans, goals, growth, cash
flows, liquidity, and stock price;
our ability to maintain our status as a REIT, given the highly technical and complex Internal Revenue Code (the "Code") provisions for which only
limited judicial and administrative authorities exist, where even a technical or inadvertent violation could jeopardize REIT qualification and where
requirements may depend in part on the actions of third parties over which the Company has no control or only limited influence;
the satisfaction of certain asset, income, organizational, distribution, shareholder ownership and other requirements on a continuing basis in order
for the Company to maintain its REIT status;
the ability and willingness of our tenants and other third parties to meet and/or perform their obligations under their respective contractual
arrangements with us, including lease and note requirements and in some cases, their obligations to indemnify, defend and hold us harmless from
and against various claims, litigation and liabilities;
the ability of our tenants and operators to maintain the financial strength and liquidity necessary to satisfy their respective obligations and
liabilities to third parties, including, without limitation, to satisfy obligations under their existing credit facilities and other indebtedness;
the ability of our tenants and operators to comply with laws, rules and regulations in the operation of our properties, to deliver high quality
services, to attract and retain qualified personnel and to attract customers;
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the ability to generate sufficient cash flows to service our outstanding indebtedness;
our ability to access capital through debt and equity markets in amounts and at rates and costs acceptable to GLPI, including for acquisitions or
refinancings due to maturities;
adverse changes in our credit rating;
the impact of global or regional economic conditions;
the availability of qualified personnel and our ability to retain our key management personnel;
changes in the United States tax law and other federal, state or local laws, whether or not specific to real estate, REITs or the gaming, lodging or
hospitality industries;
changes in accounting standards;
the impact of weather or climate events or conditions, natural disasters, acts of terrorism and other international hostilities, war (including the
current conflict between Russia and Ukraine) or political instability;
the historical financial statements included herein do not reflect what the business, financial position or results of operations of GLPI may be in
the future;
other risks inherent in the real estate business, including potential liability relating to environmental matters and illiquidity of real estate
investments; and
additional factors discussed in the sections entitled "Risk Factors" and "Management's Discussion and Analysis of Financial Condition and Results
of Operations" in this report.
Other unknown or unpredictable factors may also cause actual results to differ materially from those projected by the forward-looking statements.
Most of these factors are difficult to anticipate and are generally beyond the control of the Company.
You should consider the areas of risk described above, as well as those set forth under the heading "Risk Factors," in connection with considering any
forward-looking statements that may be made by the Company generally. The Company does not undertake any obligation to release publicly any revisions
to any forward-looking statements, to report events or to report the occurrence of unanticipated events unless required to do so by law.
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In this Annual Report on Form 10-K, the terms "we," "us," "our," the "Company" and "GLPI" refer to Gaming and Leisure Properties, Inc. and its
subsidiaries, unless the context indicates otherwise.
PART I
ITEM 1. BUSINESS
Overview
GLPI is a self-administered and self-managed Pennsylvania REIT. The Company was incorporated on February 13, 2013, as a wholly-owned
subsidiary of PENN Entertainment, Inc., formerly known as Penn National Gaming, Inc. (NASDAQ: PENN) ("PENN"). On November 1, 2013, PENN
contributed to GLPI, through a series of internal corporate restructurings, substantially all of the assets and liabilities associated with PENN’s real property
interests and real estate development business, as well as the assets and liabilities of Hollywood Casino Baton Rouge and Hollywood Casino Perryville
(which are referred to as the "TRS Properties") and then spun-off GLPI to holders of PENN's common and preferred stock in a tax-free distribution (the
"Spin-Off"). The assets and liabilities of GLPI were recorded at their respective historical carrying values at the time of the Spin-Off in accordance with the
provisions of Financial Accounting Standards Board ("FASB") Accounting Standards Codification ("ASC") 505-60 - Spinoffs and Reverse Spinoffs ("ASC
505").
GLPI elected on its United States ("U.S.") federal income tax return for its taxable year that began on January 1, 2014 to be treated as a REIT, and
GLPI, together with its indirect wholly-owned subsidiary, GLP Holdings, Inc., jointly elected to treat each of GLP Holdings, Inc., Louisiana Casino
Cruises, Inc. (d/b/a Hollywood Casino Baton Rouge) and Penn Cecil Maryland, Inc. (d/b/a Hollywood Casino Perryville) as a "taxable REIT subsidiary"
("TRS") effective on the first day of the first taxable year of GLPI as a REIT. In connection with the Spin-Off, PENN allocated its accumulated earnings
and profits (as determined for U.S. federal income tax purposes) for periods prior to the consummation of the Spin-Off between PENN and GLPI. In
connection with its election to be taxed as a REIT for U.S. federal income tax purposes, GLPI declared a special dividend to its shareholders to distribute
any accumulated earnings and profits relating to the real property assets and attributable to any pre-REIT years, including any earnings and profits allocated
to GLPI in connection with the Spin-Off, to comply with certain REIT qualification requirements. In addition, during 2020, GLPI and Tropicana LV, LLC,
a wholly owned subsidiary of the GLPI that at the time held the real estate of the Tropicana Las Vegas Casino Hotel Resort ("Tropicana Las Vegas"),
elected to treat Tropicana LV, LLC as a TRS. Further, as partial consideration for the transactions with The Cordish Companies ("Cordish") described
below, GLP Capital, L.P., the operating partnership of GLPI ("GLP Capital"), issued 7,366,683 newly-issued operating partnership units ("OP Units") to
affiliates of Cordish. OP Units are exchangeable for common shares of GLPI on a one-for-one basis, subject to certain terms and conditions. Such issuance
of OP Units to Cordish in exchange for its contribution of certain real property assets resulted in GLP Capital becoming treated as a partnership for income
tax purposes, with GLPI being deemed to contribute substantially all of the assets and liabilities of GLP Capital in exchange for the general partnership and
a majority of the limited partnership interests, and a minority limited partnership interest being owned by Cordish (the "UPREIT Transaction"). In advance
of the UPREIT Transaction, GLPI, together with GLP Financing II, Inc., jointly elected to treat GLP Financing II, Inc. as a TRS effective December 23,
2021.
On July 1, 2021, the Company sold the operations of Hollywood Casino Perryville to PENN and is leasing the real estate to PENN pursuant to a
standalone lease. On December 17, 2021, the Company sold the operations of Hollywood Casino Baton Rouge to Casino Queen Holding Company Inc.
("Casino Queen") and is leasing the real estate to Casino Queen pursuant to the Casino Queen Master Lease as described below. On December 17, 2021,
GLPI declared a special dividend to the Company's shareholders to distribute the accumulated earnings and profits attributable to these sales. In 2021, as a
result of the sale of the operations of Hollywood Casino Perryville and Hollywood Casino Baton Rouge, GLP Holdings, Inc. was merged into GLP Capital.
GLPI's primary business consists of acquiring, financing, and owning real estate property to be leased to gaming operators in triple-net lease
arrangements. Triple-net leases are leases in which the lessee pays rent to the lessor, as well as all taxes, insurance, utilities and maintenance expenses that
arise from the use of the property. As of December 31, 2022, GLPI's portfolio consisted of interests in 57 gaming and related facilities, the real property
associated with 34 gaming and related facilities operated by PENN, the real property associated with 7 gaming and related facilities operated by Caesars
Entertainment Corporation (NASDAQ: CZR) ("Caesars"), the real property associated with 4 gaming and related facilities operated by Boyd Gaming
Corporation (NYSE: BYD) ("Boyd"), the real property associated with 7 gaming and related facilities operated by Bally's Corporation (NYSE: BALY)
("Bally's), the real property associated with 3 gaming and related facilities operated by Cordish and the real property associated with 2 gaming and related
facilities operated by Casino Queen. These facilities, including our corporate headquarters building, are geographically diversified across 17 states and
contain approximately 27.8
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million square feet. As of December 31, 2022, our properties were 100% occupied. We expect to continue growing our portfolio by pursuing opportunities
to acquire additional gaming facilities to lease to gaming operators under prudent terms.
Leases
PENN Master Lease
As a result of the Spin-Off, GLPI owns substantially all of PENN's former real property assets (as of the consummation of the Spin-Off) and
leases back most of those assets to PENN for use by its subsidiaries pursuant to a unitary master lease (the "PENN Master Lease"). The PENN Master
Lease is a triple-net operating lease, the term of which expires October 31, 2033, with no purchase option, followed by three remaining 5-year renewal
options (exercisable by the tenant) on the same terms and conditions. See Note 12 for further details regarding such renewal options. Additionally, see Note
18 for additional information related to the amendment to the PENN Master Lease as well as the creation of a new master lease with PENN.
Amended Pinnacle Master Lease, Boyd Master Lease and Belterra Park Lease
In April 2016, the Company acquired substantially all of the real estate assets of Pinnacle Entertainment, Inc. ("Pinnacle") for approximately $4.8
billion. GLPI originally leased these assets back to Pinnacle, under a unitary triple-net lease, the term of which expires on April 30, 2031, with no purchase
option, followed by four remaining 5-year renewal options (exercisable by the tenant) on the same terms and conditions (the "Pinnacle Master Lease"). On
October 15, 2018, the Company completed its previously announced transactions with PENN, Pinnacle and Boyd to accommodate PENN's acquisition of
the majority of Pinnacle's operations, pursuant to a definitive agreement and plan of merger between PENN and Pinnacle, dated December 17, 2017 (the
"PENN-Pinnacle Merger"). Concurrent with the PENN-Pinnacle Merger, the Company amended the Pinnacle Master Lease to allow for the sale of the
operating assets of Ameristar Casino Hotel Kansas City, Ameristar Casino Resort Spa St. Charles and Belterra Casino Resort from Pinnacle to Boyd (the
"Amended Pinnacle Master Lease") and entered into a new unitary triple-net master lease agreement with Boyd (the "Boyd Master Lease") for these
properties on terms similar to the Company’s Amended Pinnacle Master Lease. The Boyd Master Lease has an initial term of 10 years (from the original
April 2016 commencement date of the Pinnacle Master Lease and expiring April 30, 2026), with no purchase option, followed by five 5-year renewal
options (exercisable by the tenant) on the same terms and conditions. The Company also purchased the real estate assets of Plainridge Park Casino
("Plainridge Park") from PENN for $250.0 million, exclusive of transaction fees and taxes and added this property to the Amended Pinnacle Master Lease.
The Amended Pinnacle Master Lease was assumed by PENN at the consummation of the PENN-Pinnacle Merger. The Company also entered into a
mortgage loan agreement with Boyd in connection with Boyd's acquisition of Belterra Park Gaming & Entertainment Center ("Belterra Park"), whereby the
Company loaned Boyd $57.7 million (the "Belterra Park Loan"). In May 2020, the Company acquired the real estate assets of Belterra Park in satisfaction
of the Belterra Park Loan, subject to a long-term lease (the "Belterra Park Lease") with a Boyd affiliate operating the property. The Belterra Park Lease rent
terms are consistent with the Boyd Master Lease. The annual rent is comprised of a fixed component, part of which is subject to an annual escalator of up
to 2% if certain rent coverage ratio thresholds are met, and a component that is based on the performance of the facilities which is adjusted, subject to
certain floors, every two years to an amount equal to 4% of the average annual net revenues of Belterra Park during the preceding two years in excess of a
contractual baseline.
Meadows Lease
The real estate assets of the Meadows Racetrack and Casino are leased to PENN pursuant to a single property triple-net lease (the "Meadows
Lease"). The Meadows Lease commenced on September 9, 2016 and had an initial term of 10 years, with no purchase option, and the option to renew for
three successive 5-year terms and one 4-year term (exercisable by the tenant) on the same terms and conditions. The Meadows Lease contains a fixed
component, subject to annual escalators, and a component that was based on the performance of the facility, which is reset every two years to an amount
determined by multiplying (i) 4% by (ii) the average annual net revenues of the facility for the trailing two-year period. The Meadows Lease contains an
annual escalator provision for up to 5% of the base rent, if certain rent coverage ratio thresholds are met, which remains at 5% until the earlier of ten years
or the year in which total rent is $31 million, at which point the escalator is to be reduced to a maximum of 2% annually thereafter. As described in Note
18, the Meadows Lease was terminated during 2023 and the real estate associated with the property became part of a new master lease with PENN.
Second Amended and Restated Caesars Master Lease
On October 1, 2018, the Company closed its previously announced transaction to acquire certain real property assets from Tropicana
Entertainment Inc. ("Tropicana") and certain of its affiliates pursuant to a Purchase and Sale Agreement dated April 15, 2018 between Tropicana and GLP
Capital, which was subsequently amended on October 1, 2018 (as amended, the "Amended Real Estate Purchase Agreement"). Pursuant to the terms of the
Amended Real Estate Purchase Agreement, the
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Company acquired the real estate assets of Tropicana Atlantic City, Tropicana Evansville, Tropicana Laughlin, Trop Casino Greenville and the Belle of
Baton Rouge (the "GLP Assets") from Tropicana for an aggregate cash purchase price of $964.0 million, exclusive of transaction fees and taxes (the
"Tropicana Acquisition"). Concurrent with the Tropicana Acquisition, Eldorado Resorts, Inc. (now doing business as Caesars) acquired the operating assets
of these properties from Tropicana pursuant to an Agreement and Plan of Merger dated April 15, 2018 by and among Tropicana, GLP Capital, Caesars and
a wholly-owned subsidiary of Caesars (the "Tropicana Merger Agreement") and leased the GLP Assets from the Company pursuant to the terms of a new
unitary triple-net master lease with an initial term of 15 years, with no purchase option, followed by four successive 5-year renewal periods (exercisable by
the tenant) on the same terms and conditions (the "Caesars Master Lease").
On June 15, 2020, the Company amended and restated the Caesars Master Lease (as amended, the "Amended and Restated Caesars Master
Lease") to, (i) extend the initial term of 15 years to 20 years, with renewals of up to an additional 20 years at the option of Caesars, (ii) remove the variable
rent component in its entirety commencing with the third lease year, (iii) in the third lease year, increase annual land base rent to approximately $23.6
million and annual building base rent to approximately $62.1 million, (iv) provide fixed escalation percentages that delay the escalation of building base
rent until the commencement of the fifth lease year with building base rent increasing annually by 1.25% in the fifth and sixth lease years, 1.75% in the
seventh and eighth lease years and 2% in the ninth lease year and each lease year thereafter, (v) subject to the satisfaction of certain conditions, permit
Caesars to elect to replace the Tropicana Evansville and/or Tropicana Greenville properties under the Amended and Restated Caesars Master Lease with
one or more of Caesars Gaming Scioto Downs, The Row in Reno, Isle Casino Racing Pompano Park, Isle Casino Hotel – Black Hawk, Lady Luck Casino
– Black Hawk, Isle Casino Waterloo ("Waterloo"), Isle Casino Bettendorf ("Bettendorf") or Isle of Capri Casino Boonville, provided that the aggregate
value of such new property, individually or collectively, is at least equal to the value of Tropicana Evansville or Tropicana Greenville, as applicable, (vi)
permit Caesars to elect to sell its interest in Belle of Baton Rouge and sever it from the Amended and Restated Caesars Master Lease (with no change to the
rent obligation to the Company), subject to the satisfaction of certain conditions, and (vii) provide certain relief under the operating, capital expenditure and
financial covenants thereunder in the event of facility closures due to pandemics, governmental restrictions and certain other instances of unavoidable
delay. The effectiveness of the Amended and Restated Caesars Master Lease was subject to the review and approval of certain gaming regulatory agencies
and the expiration of applicable gaming regulatory advance notice periods, which were received on July 23, 2020.
On December 18, 2020, the Company and Caesars entered into an amendment to the Amended and Restated Caesars Master Lease (as amended,
the "Second Amended and Restated Caesars Master Lease") in connection with the parties' completion of an Exchange Agreement (the "Exchange
Agreement") with subsidiaries of Caesars in which Caesars transferred to the Company the real estate assets of Waterloo and Bettendorf in exchange for the
transfer by the Company to Caesars of the real property assets of Tropicana Evansville, plus a cash payment of $5.7 million. In connection with the
Exchange Agreement, the annual building base rent was increased to $62.5 million and the annual land component was increased to $23.7 million. The
Exchange Agreement resulted in a non-cash gain of $41.4 million in the fourth quarter of 2020, which represented the difference between the fair value of
the properties received compared to the carrying value of Tropicana Evansville and the cash payment made.
Horseshoe St. Louis Lease
On October 1, 2018, the Company entered into a loan agreement with Caesars in connection with Caesars’s acquisition of Lumière Place Casino,
now known as Horseshoe St. Louis ("Horseshoe St. Louis"), whereby the Company loaned Caesars $246.0 million (the "CZR loan"). The CZR loan bore
interest at a rate equal to (i) 9.09% until October 1, 2019 and (ii) 9.27% until its maturity. On the one-year anniversary of the CZR loan, the mortgage
evidenced by a deed of trust on the Horseshoe St. Louis property terminated and the loan became unsecured. On June 24, 2020, the Company received
approval from the Missouri Gaming Commission to own the real estate associated with the Horseshoe St. Louis property in satisfaction of the CZR loan.
On September 29, 2020, the transaction closed and the Company entered into a new triple net lease with Caesars (the "Horseshoe St. Louis Lease") the
initial term of which expires on October 31, 2033 with four separate renewal options of five years each (exercisable at the tenant's option) on the same
terms and conditions. The Horseshoe St. Louis Lease rent terms were adjusted on December 1, 2021 such that the annual escalator is now fixed at 1.25%
for the second through fifth lease years, increasing to 1.75% for the sixth and seventh lease years and thereafter increasing by 2.0% for the remainder of the
lease.
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Bally's Master Lease
On June 3, 2021, the Company completed its previously announced transaction pursuant to which a subsidiary of Bally's acquired 100% of the
equity interests in the Caesars subsidiary that currently operates Tropicana Evansville and the Company reacquired the real property assets of Tropicana
Evansville from Caesars for a cash purchase price of approximately $340.0 million. In addition, the Company purchased the real estate assets of Dover
Downs Hotel & Casino from Bally's for a cash purchase price of approximately $144.0 million. The real estate assets of these two facilities were added to a
new triple net master lease (as amended, the "Bally's Master Lease") that has an initial term of 15 years, with no purchase option, followed by four 5-year
renewal options (exercisable by the tenant) on the same terms and conditions. Rent under the Bally's Master Lease is $40 million annually.
On April 1, 2022, the Company completed the previously announced acquisition from Bally's of the land and real estate assets of Bally's three
Black Hawk Casinos in Black Hawk, Colorado and Bally's Quad Cities Casino & Hotel in Rock Island, Illinois for $150 million in total consideration.
These properties were added to the Bally's Master Lease and the initial rent for the lease was increased by $12.0 million on an annual basis, subject to the
escalation clauses described below.
As described in Note 18, on January 3, 2023, the Company closed its previously announced acquisition of the land and real estate assets of Bally's
Hard Rock Hotel & Casino Biloxi ("Bally's Biloxi") and Bally's Tiverton Casino & Hotel ("Bally's Tiverton") from Bally's for $635 million in total
consideration, inclusive of $15 million in the form of OP units. These properties were added to the Bally's Master Lease. The initial annual rent for the
lease was increased by $48.5 million on an annual basis, subject to the escalation clauses described below.
In connection with GLPI’s commitment to consummate the Bally’s acquisitions, it also agreed to pre-fund, at Bally’s election, a deposit of up to
$200.0 million, which was funded in September 2022 and recorded in Other assets on the Consolidated Balance Sheet at December 31, 2022. This amount
was credited to GLPI along with a $9.0 million transaction fee payable at closing which occurred on January 3, 2023. The Company continues to have the
option, subject to receipt by Bally's of required consents, to acquire the real property assets of Bally's Twin River Lincoln ("Bally's Lincoln") prior to
December 31, 2024 for a purchase price of $771 million and additional rent of $58.8 million. See Note 18 for further details.
Tropicana Las Vegas Lease
On April 16, 2020, the Company and certain of its subsidiaries closed on its previously announced transaction to acquire the real property
associated with the Tropicana Las Vegas from PENN in exchange for $307.5 million of rent credits, which were applied against future rent obligations due
under the parties' existing leases during 2020.
On September 26, 2022, Bally’s acquired both GLPI’s building assets and PENN's outstanding equity interests in Tropicana Las Vegas for an
aggregate cash acquisition price, net of fees and expenses, of approximately $145 million, which resulted in a pre-tax gain of $67.4 million, ($52.8 million
after-tax). GLPI retained ownership of the land and concurrently entered into a ground lease for an initial term of 50 years (with a maximum term of 99
years inclusive of tenant renewal options) with initial annual rent of $10.5 million. The ground lease is supported by a Bally’s corporate guarantee and
cross-defaulted with the Bally's Master Lease (the "Tropicana Las Vegas Lease").
Morgantown Lease
On October 1, 2020, the Company and PENN closed on their previously announced transaction whereby GLPI acquired the land under PENN's
gaming facility under construction in Morgantown, Pennsylvania in exchange for $30.0 million in rent credits that were fully utilized by PENN in the
fourth quarter of 2020. The Company is leasing the land back to an affiliate of PENN for an initial term of 20 years, followed by six 5-year renewal options
exercisable by the tenant (the "Morgantown Lease").
Casino Queen Master Lease
On November 25, 2020, the Company entered into a definitive agreement to sell the operations of its Hollywood Casino Baton Rouge to Casino
Queen for $28.2 million (the "HCBR transaction"). The HBCR transaction closed on December 17, 2021 which resulted in a pre-tax gain of $6.8 million
(loss of $7.7 million after tax) for the year ended December 31, 2021. The Company retained ownership of all real estate assets at Hollywood Casino Baton
Rouge and simultaneously entered into an amended triple net master lease with Casino Queen, which includes the Casino Queen property in East St. Louis
that was leased by the Company to Casino Queen and the Hollywood Casino Baton Rouge facility ("Casino Queen Master Lease"). The initial annual cash
rent is $21.4 million and the lease has an initial term of 15 years with four 5-year renewal options (exercisable by
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the tenant) on the same terms and conditions. This rental amount will be increased annually by 0.5% for the first six years. Beginning with the seventh
lease year through the remainder of the lease term, if the Consumer Price Index ("CPI") increases by at least 0.25% for any lease year then annual rent shall
be increased by 1.25%, and if the CPI increase is less than 0.25% then rent will remain unchanged for such lease year. Additionally, the Company will
complete the current landside development project that is in process and the rent under the Casino Queen Master Lease will be adjusted upon delivery to
reflect a yield of 8.25% on GLPI's project costs. The Company will also have a right of first refusal with Casino Queen for other sale leaseback transactions
up to $50 million until December 2023. Finally, in 2021, GLPI forgave the unsecured $13.0 million, 5.5 year term loan made to CQ Holding Company,
Inc., an affiliate of Casino Queen, which was previously written off in return for a one-time cash payment of $4 million which was recorded in provision
for credit losses, net, for the year ended December 31, 2021 on the Consolidated Statement of Income.
Perryville Lease
On December 15, 2020, the Company announced that PENN exercised its option to purchase from the Company the operations of our Hollywood
Casino Perryville, located in Perryville, Maryland, for $31.1 million. The transaction closed on July 1, 2021, which resulted in a pre-tax gain of $15.6
million ($11.3 million after tax) for the year ended December 31, 2021. The Company retained ownership of all the real estate assets of Hollywood Casino
Perryville and simultaneously entered into a triple net lease with PENN (the "Perryville Lease"). As described in Note 18, the Perryville Lease was
terminated during 2023, and the real estate associated with the property became part of a new master lease with PENN.
Maryland Live! Lease and Pennsylvania Live! Master Lease
On December 6, 2021, the Company announced that it agreed to acquire the real property assets of Live! Casino & Hotel Maryland, Live! Casino &
Hotel Philadelphia, and Live! Casino Pittsburgh, including assignment of applicable long-term ground leases, from affiliates of Cordish for aggregate
consideration of approximately $1.81 billion excluding transaction costs at deal announcement. The transaction also includes a binding partnership on
future Cordish casino developments, as well as potential financing partnerships between the Company and Cordish in other areas of Cordish's portfolio of
real estate and operating businesses. On December 29, 2021, the Company completed its acquisition of the real property assets of Live! Casino & Hotel
Maryland and entered into a single asset lease for Live! Casino & Hotel Maryland (the "Maryland Live! Lease"). On March 1, 2022, the Company
completed its acquisition of the real estate assets of Live! Casino & Hotel Philadelphia and Live! Casino Pittsburgh for $689 million and leased back the
real estate to Cordish pursuant to a new triple net master lease with Cordish (the "Pennsylvania Live! Master Lease"). The Pennsylvania Live! Master
Lease and the Maryland Live! Lease each have initial lease terms of 39 years, with a maximum term of 60 years inclusive of tenant renewal options. The
annual rent for the Maryland Live! Lease is $75.0 million and the Pennsylvania Live! Master Lease is $50 million, both of which have a 1.75% fixed yearly
escalator on the entirety of rent commencing on the leases' second anniversary.
Guarantees
The obligations under the PENN Master Lease, Amended Pinnacle Master Lease, Morgantown Lease, Meadows Lease and the Perryville Lease,
are guaranteed by PENN and, with respect to each lease, jointly and severally by PENN's subsidiaries that occupy and operate the facilities covered by such
lease. Similarly, the obligations under the Second Amended and Restated Caesars Master Lease and the Bally's Master Lease are jointly and severally
guaranteed by the corporate parent and the parent's subsidiaries that occupy and operate the facilities leased under the Second Amended and Restated
Caesars Master Lease and Bally's Master Lease, respectively. The obligations under the Tropicana Las Vegas Lease are guaranteed by Bally's. The
obligations under the Boyd Master Lease are jointly and severally guaranteed by Boyd's subsidiaries that occupy and operate the facilities leased under the
Boyd Master Lease. Similarly, the obligations under the Maryland Live! Lease and Pennsylvania Live! Master Lease are jointly and severally guaranteed
by the Cordish subsidiaries that occupy and operate the facilities leased under the respective leases.
Rent
The rent structure under the PENN Master Lease includes a fixed component, a portion of which is subject to an annual escalator of up to 2% if
certain rent coverage ratio thresholds are met, and a component that is based on the performance of the facilities, which is prospectively adjusted, subject to
certain floors (namely the Hollywood Casino at Penn National Race Course property due to PENN's opening of a competing facility) (i) every five years to
an amount equal to 4% of the average net revenues of all facilities under the PENN Master Lease (other than Hollywood Casino Columbus and Hollywood
Casino Toledo) during the preceding five years in excess of a contractual baseline, and (ii) monthly by an amount equal to 20% of the net revenues of
Hollywood Casino Columbus and Hollywood Casino Toledo during the preceding month in excess of a
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contractual baseline, although Hollywood Casino Toledo has a monthly percentage rent floor that equals $22.9 million annually due to PENN's 2019
purchase of a competing facility, the Greektown Casino Hotel in Detroit, Michigan.
Similar to the PENN Master Lease, the Amended Pinnacle Master Lease also includes a fixed component, a portion of which is subject to an
annual escalator of up to 2% if certain rent coverage ratio thresholds are met and a component that is based on the performance of the facilities, which is
prospectively adjusted, subject to certain floors (namely the Bossier City Boomtown property due to PENN's acquisition of a competing facility,
Margaritaville Resort Casino), every two years to an amount equal to 4% of the average net revenues of all facilities under the Amended Pinnacle Master
Lease during the preceding two years in excess of a contractual baseline.
The Boyd Master Lease includes a fixed component, a portion of which is subject to an annual escalator of up to 2% if certain rent coverage ratio
thresholds are met, and a component that is based on the performance of the facilities, which is adjusted every two years to an amount equal to 4% of the
average annual net revenues of all facilities under the Boyd Master Lease during the preceding two years in excess of a contractual baseline.
In May 2020, the Company acquired the real estate of Belterra Park in satisfaction of the Belterra Park Loan, subject to the Belterra Park Lease
with a Boyd affiliate operating the property. The Belterra Park Lease rent terms are consistent with the Boyd Master Lease. The annual rent is comprised of
a fixed component, part of which is subject to an annual escalator of up to 2% if certain rent coverage ratio thresholds are met and a component that is
based on the performance of the facilities which is adjusted, subject to certain floors, every two years to an amount equal to 4% of the average annual net
revenues of Belterra Park during the preceding two years in excess of a contractual baseline.
The Amended and Restated Caesars Master Lease became effective on July 23, 2020, and among other things, changed the rental terms to become
entirely fixed in nature, with the majority being subject to fixed escalations beginning in the fifth lease year as previously discussed.
On September 29, 2020, the Company acquired the real estate of Horseshoe St. Louis in satisfaction of the CZR loan, subject to the Horseshoe St.
Louis Lease, the initial term of which expires on October 31, 2033, with 4 separate renewal options of five years each, exercisable at the tenant's option.
The Horseshoe St. Louis Lease's rent is subject to an annual escalator of 1.25% for the second through fifth lease years, increasing to 1.75% for the sixth
and seventh lease years and thereafter increasing by 2.0% for the remainder of the lease.
The Meadows Lease contains a fixed component, subject to annual escalators, and a component that is based on the performance of the facility,
which is reset every two years to an amount determined by multiplying (i) 4% by (ii) the average annual net revenues of the facility for the trailing two-
year period. The Meadows Lease contains an annual escalator provision for up to 5% of the base rent, if certain rent coverage ratio thresholds are met,
which remains at 5% until the earlier of ten years or the year in which total rent is $31 million, at which point the escalator will be reduced to a maximum
of 2% annually thereafter. As described in Note 18, the Meadows Lease was terminated during 2023 and the real estate assets associated with the property
became part of a new master lease with PENN.
The Morgantown Lease became effective on October 1, 2020 whereby the Company is leasing the land under PENN's gaming facility under
construction for an initial cash rent of $3.0 million, provided, however, that (i) on the opening date and on each anniversary thereafter the rent shall be
increased by 1.5% annually (on a prorated basis for the remainder of the lease year in which the gaming facility opens) for each of the following three lease
years and (ii) commencing on the fourth anniversary of the opening date and for each anniversary thereafter, (a) if the CPI increase is at least 0.5% for any
lease year, the rent for such lease year shall increase by 1.25% of rent as of the immediately preceding lease year, and (b) if the CPI increase is less than
0.5% for such lease year, then the rent shall not increase for such lease year. Hollywood Casino Morgantown opened on December 22, 2021.
The initial rent under the Casino Queen Master Lease, which became effective on December 17, 2021, is $21.4 million and such amount increases
annually by 0.5% for the first six years. Beginning with the seventh lease year through the remainder of the lease term, if the CPI increases by at least
0.25% for any lease year, then annual rent shall be increased by 1.25%, and if the CPI increase is less than 0.25%, then rent will remain unchanged for such
lease year. The Company will also complete the current landside development project that is in process at Hollywood Casino Baton Rouge and rent under
the Casino Queen Master Lease will be adjusted to reflect a yield of 8.25% on GLPI's project costs.
The Perryville Lease with PENN became effective July 1, 2021 with initial annual rent of $7.77 million, $5.83 million of which is subject to
escalation provisions beginning in the second lease year through the fourth lease year and increasing by
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1.50% during such period and then increasing by 1.25% for the remaining lease term. The escalation provisions beginning in the fifth lease year are subject
to the CPI being at least 0.5% for the preceding lease year. As described in Note 18, the Perryville Lease was terminated during 2023 and the real estate
assets associated with the property became part of a new master lease with PENN.
The Bally's Master Lease became effective on June 3, 2021 in connection with the Company's acquisition of the real estate assets of Tropicana
Evansville and Dover Downs Casino & Hotel. Rent under the Bally's Master Lease is $40 million annually and is subject to contractual escalations
determined in relation to the annual increase in CPI, with a 1% floor and a 2% ceiling, subject to the CPI meeting a 0.5% threshold.
On April 1, 2022, Bally's three casinos in Black Hawk, Colorado and Bally's Quad Cities Casino & Hotel in Rock Island, Illinois were added to
the Bally's Master Lease and the initial rent for the Bally's Master Lease was increased by $12 million on an annual basis, subject to the Bally's Master
Lease escalation clauses described above.
On January 3, 2023, Bally's Tiverton and Bally's Biloxi were added to the Bally's Master Lease and the annual rent was increased by $48.5
million, subject to the Bally's Master Lease escalation clauses described above.
On December 29, 2021, the Maryland Live! Lease with Cordish became effective. Annual rent is $75.0 million and increases by 1.75% annually
commencing upon the second anniversary of the lease commencement. The Pennsylvania Live! Master Lease with Cordish became effective March 1,
2022 and has annual rent of $50 million initially, increasing by 1.75% annually commencing upon the second anniversary of the lease commencement.
These leases were accounted for as an Investment in leases, financing receivables. See Note 7 for the further information including the future annual cash
payments to be received under these leases.
On September 26, 2022, the Tropicana Las Vegas Lease, which has initial annual rent of $10.5 million became effective. Commencing on the first
anniversary and on each anniversary thereafter, if the CPI increase is at least 0.5% for any lease year, the rent shall increase by the greater of 1% of the rent
in effect for the preceding lease year and the CPI increase, capped at 2%. If the CPI increase is less than 0.5% for such lease year, then the rent shall not
increase for such lease year.
Furthermore, the Company's leases with percentage rent provide for a floor on such percentage rent described above, should the Company's
tenants acquire or commence operating a competing facility within a restricted area (typically 60 miles from a property under the existing lease with such
tenant). These clauses provide landlord protections by basing the percentage rent floor for any affected facility on the net revenues of such facility for the
calendar year immediately preceding the year in which the competing facility is acquired or first operated by the tenant. A percentage rent floor was
triggered on PENN's Hollywood Casino Toledo property, as a result of PENN's purchase of the operations of the Greektown Casino-Hotel in Detroit,
Michigan and a percentage rent floor on the Amended Pinnacle Master Lease was triggered on the Bossier City Boomtown property due to PENN's
acquisition of Margaritaville Resort Casino. Additionally, a percentage rent floor was triggered on the Hollywood Casino at Penn National Race Course in
connection with PENN opening a facility in York, Pennsylvania, which will go into effect on November 1, 2023, the date of the next reset. As described in
Note 18, a new master lease was entered into with PENN. PENN's Hollywood Casino Toledo property was moved to this new lease, and as such, the
percentage rent previously associated with this property, along with the other properties that moved to the new lease, are no longer applicable.
Costs
In addition to rent, as triple-net lessees, all of the Company's tenants are required to pay the following executory costs: (1) all facility maintenance,
(2) all insurance required in connection with the leased properties and the business conducted on the leased properties, including coverage of the landlord's
interests, (3) taxes and other impositions levied on or with respect to the leased properties (other than taxes on the income of the lessor), and (4) all utilities
and other services necessary or appropriate for the leased properties and the business conducted on the leased properties.
Termination of Leases
Our tenants do not have the ability to terminate their obligations under our long-term tenant leases prior to the expiration of the initial term without
the Company's consent. If our long-term tenant leases are terminated prior to their initial expiration other than with our consent, our tenants may be liable
for damages and incur charges such as continued payment of rent through the end of the lease term and maintenance costs for the leased property. All of
our tenant leases contain a limited number of renewal options which may be exercised at our tenants' option.
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Property Features
The following table summarizes certain features of our properties as of December 31, 2022:
Location
Tenant/Lease Agreement
Approx.
Property
Square
Footage
(1)
Owned
Acreage
Leased
Acreage
(2)
Hotel
Rooms
(3)
(3)
Grantville, PA
Henderson, NV
Bangor, ME
Hobbs, NM
Bay St. Louis, MS
Riverside, MO
Tunica, MS
Biloxi, MS
Maryland Heights, MO
Dayton, OH
Lawrenceburg, IN
Aurora, IL
Joliet, IL
Alton, IL
Toledo, OH
Columbus, OH
Charles Town, WV
Tenant Occupied Properties
Hollywood Casino Lawrenceburg
Hollywood Casino Aurora
Hollywood Casino Joliet
Argosy Casino Alton
Hollywood Casino Toledo
Hollywood Casino Columbus
Hollywood Casino at Charles Town Races
Hollywood Casino at Penn National Race
Course
M Resort
Hollywood Casino Bangor
Zia Park Casino
Hollywood Casino Gulf Coast
Argosy Casino Riverside
Hollywood Casino Tunica
Boomtown Biloxi
Hollywood Casino St. Louis
Hollywood Gaming at Dayton Raceway
Hollywood Gaming at Mahoning Valley Race
Youngstown, OH
Course
Tunica, MS
1st Jackpot Casino
Black Hawk, CO
Ameristar Black Hawk
East Chicago, IN
Ameristar East Chicago
Council Bluffs, IA
Ameristar Council Bluffs
Baton Rouge, LA
L'Auberge Baton Rouge
Bossier City, LA
Boomtown Bossier City
Lake Charles, LA
L'Auberge Lake Charles
New Orleans, LA
Boomtown New Orleans
Vicksburg, MS
Ameristar Vicksburg
St. Louis, MO
River City Casino and Hotel
Jackpot, NV
Jackpot Properties
Plainville, MA
Plainridge Park Casino
Washington, PA
The Meadows Racetrack and Casino
Morgantown, PA
Hollywood Casino Morgantown
Perryville, MD
Hollywood Casino Perryville
East St. Louis, IL
Casino Queen
Baton Rouge, LA
Hollywood Casino Baton Rouge
Florence, IN
Belterra Casino Resort
Kansas City, MO
Ameristar Kansas City
Ameristar St. Charles
St. Charles, MO
Belterra Park Gaming & Entertainment Center Cincinnati, OH
Tropicana Atlantic City
Tropicana Laughlin
Isle Casino Hotel Bettendorf
Isle Casino Hotel Waterloo
Trop Casino Greenville
Belle of Baton Rouge
Atlantic City, NJ
Laughlin, NV
Bettendorf, IA
Waterloo, IA
Greenville, MS
Baton Rouge, LA
(4)
(3)
(3)
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/PENN Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Amended Pinnacle Master Lease
PENN/Meadows Lease
PENN/Morgantown Lease
PENN/Perryville Lease
Casino Queen Master Lease
Casino Queen Master Lease
Boyd/Boyd Master Lease
Boyd/Boyd Master Lease
Boyd/Boyd Master Lease
Boyd/Belterra Park Lease
Caesars/Amended Caesars Master Lease
Caesars/Amended Caesars Master Lease
Caesars/Amended Caesars Master Lease
Caesars/Amended Caesars Master Lease
Caesars/Amended Caesars Master Lease
Caesars/Amended Caesars Master Lease
/10
634,000
222,189
322,446
124,569
285,335
354,075
511,249
451,758
910,173
257,085
109,067
425,920
450,397
315,831
134,800
645,270
191,037
177,448
78,941
775,744
509,867
312,047
436,461
281,747
1,014,497
278,227
298,006
431,226
419,800
196,473
417,921
—
97,961
330,502
95,318
782,393
763,939
1,272,938
372,650
4,232,018
936,453
738,905
287,436
94,017
386,398
73.1
0.4
275.6
0.2
42.3
116.2
298.6
573.7
83.5
6.4
317.4
578.7
37.9
—
1.5
220.8
119.7
193.4
52.9
105.2
—
36.2
99.1
21.8
—
53.6
74.1
—
79.5
87.9
155.5
36.0
36.3
67.2
25.1
167.1
224.5
241.2
160.0
18.3
93.6
24.6
52.6
—
13.1
32.1
1.7
—
3.6
—
—
—
—
—
37.9
—
—
—
67.7
1.0
—
—
—
93.8
—
21.6
22.6
—
—
234.5
—
—
83.4
—
—
—
—
—
—
—
148.5
31.4
—
—
—
—
—
—
7.4
0.8
295
—
100
—
—
—
153
—
390
152
—
291
258
494
—
502
—
—
—
536
288
160
205
187
995
150
148
200
416
—
—
—
—
157
—
662
184
397
—
2,364
1,487
509
194
—
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Horseshoe St. Louis
Dover Downs
Tropicana Evansville
(5)
Bally's Black Hawk
Bally's Quad Cities Casino & Hotel
Tropicana Las Vegas
Live! Casino & Hotel Maryland
Live!Casino Pittsburgh
Live! Casino and Hotel Philadelphia
(6)
(6)
(6)
St. Louis, MO
Dover, DE
Evansville, IN
Black Hawk, CO
Rock Island, IL
Las Vegas, NV
Hanover, MD
Greensburg, PA
Philadelphia, PA
Other Properties
Other owned buildings and land
(7)
various
Total
(8)
(1)
(2)
Caesars/Horseshoe St. Louis Lease
Bally's Master Lease
Bally's Master Lease
Bally's Master Lease
Bally's Master Lease
Bally's/ Tropicana Las Vegas Lease
Cordish / Maryland Live! Lease
Cordish/Pennsylvania Live! Master Lease
Cordish/Pennsylvania Live! Master Lease
807,407
212,500
754,833
118,552
390,285
—
2,326,669
129,552
685,000
18.5
69.6
18.4
3.2
119.9
35.1
12.6
—
9.6
—
—
10.2
—
—
—
—
1.8
—
494
500
338
—
205
—
310
—
208
27,789,332
5,151.7
800.0
14,217
N/A
23,400
0.3
—
—
27,812,732 —
5,152.0 —
800.0 —
14,217
Square footage includes air-conditioned space and excludes parking garages and barns.
Leased acreage reflects land subject to leases with third-parties and includes land on which certain of the current facilities and ancillary supporting
structures are located as well as parking lots and access rights.
(3)
These properties include hotels not owned by the Company. Square footage and rooms associated with properties not owned by GLPI are excluded from
the table above.
(4)
Encompasses two gaming properties in Jackpot, Nevada: Cactus Pete's and The Horseshu.
(5)
Encompasses three gaming properties in Black Hawk, CO: Black Hawk North, Black Hawk East, and Black Hawk West.
(6)
These properties are accounted for as financing leases and are not included in real estate investments. See Note 7 in the Consolidated Financial
Statements for further details.
(7)
This includes our corporate headquarters building and undeveloped land the Company owns at locations other than its tenant occupied properties.
(8)
The table above excludes the January 3, 2023 acquisition of the real property assets of Bally's Biloxi and Bally's Tiverton which would have added 2.4
million of property square feet, increased owned acreage by 55.3 and added 563 hotel rooms to the Company's total statistics above if the
acquisition had closed in 2022. The acquisition also diversified the Company into Rhode Island.
Competition
We compete for additional real property investments with other REITs, including a publicly traded gaming focused REIT, VICI Properties Inc.,
investment companies, private equity and hedge fund investors, sovereign funds, lenders, gaming companies and other investors. Some of our competitors
are significantly larger and have greater financial resources and lower costs of capital than we have, making it more challenging to identify and successfully
capitalize on acquisition opportunities that meet our investment objectives.
In addition, percentage rent revenues on our leases are dependent on the ability of our gaming tenants to compete with other gaming operators. The
gaming industry is characterized by an increasingly high degree of competition among a large number of participants, including riverboat casinos, dockside
casinos, land-based casinos, video lottery, sweepstakes and poker machines not located in casinos, Native American gaming, emerging varieties of internet
gaming, sports betting and other forms of gaming in the U.S. In a broader sense, our gaming tenants and operators face competition from all manner of
leisure and entertainment activities, including: shopping, athletic events, television and movies, concerts and travel. Legalized gaming is currently
permitted in various forms throughout the U.S., in several Canadian provinces and on various lands taken into trust for the benefit of certain Native
Americans in the U.S. and Canada. In addition, established gaming jurisdictions could award additional gaming licenses or permit the expansion or
relocation of existing gaming operations. New, relocated or expanded
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operations by other persons may increase competition for our gaming tenants and could have a material adverse impact on our gaming tenants and
operators and us as landlord. Finally, the imposition of smoking bans and/or higher gaming tax rates have a significant impact on our gaming tenants'
ability to compete with facilities in nearby jurisdictions.
Segments
Due to the sale of the operations of Hollywood Casino Perryville and Hollywood Casino Baton Rouge that occurred in 2021, the Company's
operations consist solely of investments in real estate for which all such real estate properties are similar to one another in that they consist of destination
and leisure properties and related offerings, whose tenants offer casino gaming, hotel, convention, dining, entertainment and retail amenities, have similar
economic characteristics and are governed by triple-net operating leases. The operating results of the Company's real estate investments are reviewed in the
aggregate, by the chief operating decision maker (as such term is defined in ASC 280 - Segment Reporting). As such, as of January 1, 2022, the Company
has one reportable segment.
Information about our Executive Officers
Name
Peter M. Carlino
Brandon J. Moore
Desiree A. Burke
Matthew R. Demchyk
Steven L. Ladany
Age
Position
76 Chairman of the Board and Chief Executive Officer
48 Chief Operating Officer, General Counsel and Secretary
57 Chief Financial Officer and Treasurer
41 Senior Vice President, Chief Investment Officer
42 Senior Vice President, Chief Development Officer
Peter M. Carlino. Mr. Carlino has been the Company's Chairman and Chief Executive Officer since the Company's inception in November 2013.
Mr. Carlino was the founder of PENN and served as its Chief Executive Officer from 1994 through October 2013. Mr. Carlino also served as the Chairman
of the Board of Directors of PENN from April 1994 through May 28, 2019. Mr. Carlino continues to serve as Chairman Emeritus on PENN's Board of
Directors and has served in such position since June 2019. Mr. Carlino has served as the Chairman of the Board of Directors and as Chief Executive Officer
for PENN, and now the Company, collectively for over 25 years.
Brandon J. Moore. Mr. Moore is our Chief Operating Officer, General Counsel and Secretary. Mr. Moore was promoted to Chief Operating
Officer in October 2022 and joined the Company in January 2014. Previously, he served as PENN's Vice President, Senior Corporate Counsel from March
2010 where he was a member of the legal team responsible for a variety of transactional, regulatory and general legal matters. Prior to joining PENN,
Mr. Moore was with Ballard Spahr LLP, where he provided advanced legal counsel to clients on matters including merger and acquisition transactions, debt
and equity financings, and various other matters.
Desiree A. Burke. Ms. Burke is our Chief Financial Officer and Treasurer. She was promoted to Chief Financial Officer in October 2022 and joined
the Company in April 2014 as our Senior Vice President and Chief Accounting Officer. Previously, Ms. Burke served as PENN's Vice President and Chief
Accounting Officer from November 2009. Additionally, she served as PENN's Vice President and Corporate Controller from November 2005 to October
2009. Prior to her time at PENN Entertainment, Inc., Ms. Burke was the Executive Vice President/Director of Financial Reporting and Control for MBNA
America Bank, N.A. She joined MBNA in 1994 and held positions of ascending responsibility in the finance department during her tenure. Ms. Burke is a
CPA.
Matthew R. Demchyk. Mr. Demchyk became our Senior Vice President, Chief Investment Officer in January 2021 in which he leads the Company's
investment strategy and is responsible for capital allocation. Mr. Demchyk joined the Company in February 2019 as our Senior Vice President of
Investments. Previously, he served as Portfolio Manager of Real Estate Securities at Millennium Partners for nine years. Prior to joining Millennium
Partners, he managed a portfolio of REIT equity securities at Carlson Capital and served as Assistant Portfolio Manager at CenterSquare Investment
Management, a leading REIT dedicated asset manager. Mr. Demchyk is a CFA Charterholder.
Steven L. Ladany. Mr. Ladany became our Senior Vice President, Chief Development Officer in January 2021 and leads the Company's ongoing
merger, acquisition and development efforts. Mr. Ladany joined the Company in September 2014 as Vice President, Finance and served in that role until
March 2019, when he was promoted to Senior Vice President, Finance. Prior to joining the Company, Mr. Ladany served as a Vice President at Revel
Casino Hotel, a regional gaming property currently known as Ocean Casino Resort, and as a Vice President at J.P. Morgan in the Syndicated and Leveraged
Finance group within the firm's investment banking division.
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Tax Considerations
We intend to continue to be organized and to operate in a manner that will permit us to qualify as a REIT. Qualification and taxation as a REIT
depends on our ability to meet on a continuing basis, through actual operating results, distribution levels, and diversity of stock ownership, various
qualification requirements imposed upon REITs by the Code. Our ability to qualify to be taxed as a REIT also requires that we satisfy certain tests, some of
which depend upon the fair market values of assets that we own directly or indirectly. The material qualification requirements are summarized below. Such
values may not be susceptible to a precise determination. Accordingly, no assurance can be given that the actual results of our operations for any taxable
year will satisfy such requirements for qualification and taxation as a REIT. Additionally, while we intend to operate so that we continue to qualify to be
taxed as a REIT, no assurance can be given that the Internal Revenue Service (the "IRS") will not challenge our qualification, or that we will be able to
operate in accordance with the REIT requirements in the future.
Taxation of REITs in General
As a REIT, generally we will be entitled to a deduction for dividends that we pay and therefore will not be subject to U.S. federal corporate income
tax on our net REIT taxable income that is currently distributed to our shareholders. This treatment substantially eliminates the "double taxation" at the
corporate and shareholder levels that generally results from an investment in a C corporation. A "C corporation" is a corporation that generally is required
to pay tax at the corporate level. Double taxation means taxation once at the corporate level when income is earned and once again at the shareholder level
when the net earnings and profits are distributed as dividends. In general, the income that we generate is taxed only at the shareholder level upon a
distribution of dividends to our shareholders. We will nonetheless be subject to U.S. federal tax in the following circumstances:
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We will be taxed at regular corporate rates on any undistributed net taxable income, including undistributed net capital gains.
If we have net income from prohibited transactions, which are, in general, sales or other dispositions of inventory or property held primarily for
sale to customers in the ordinary course of business, other than foreclosure property, such income will be subject to a 100% tax.
If we elect to treat property that we acquire in connection with a foreclosure of a mortgage loan or certain leasehold terminations as "foreclosure
property," we may thereby avoid the 100% tax on gain from a resale of that property (if the sale would otherwise constitute a prohibited
transaction), but the income from the sale or operation of the property may be subject to corporate income tax at the highest applicable rate
(currently 21%).
If we fail to satisfy the 75% gross income test and/or the 95% gross income test, as discussed below, but nonetheless maintain our qualification
as a REIT because we satisfy other requirements, we will be subject to a 100% tax on an amount based on the magnitude of the failure, as
adjusted to reflect the profit margin associated with our gross income.
If we violate the asset tests (other than certain de minimis violations) or other requirements applicable to REITs, as described below, and yet
maintain our qualification as a REIT because there is reasonable cause for the failure and other applicable requirements are met, we may be
subject to a penalty tax. In that case, the amount of the penalty tax will be at least $50,000 per failure, and, in the case of certain asset test
failures, will be determined as the amount of net income generated by the nonqualifying assets in question multiplied by the highest corporate
tax rate (currently 21%) if that amount exceeds $50,000 per failure.
If we fail to distribute during each calendar year at least the sum of (i) 85% of our ordinary income for such year, (ii) 95% of our capital gain net
income for such year and (iii) any undistributed net taxable income from prior periods, we will be subject to a nondeductible 4% excise tax on
the excess of the required distribution over the sum of (a) the amounts that we actually distributed and (b) the amounts we retained and upon
which we paid income tax at the corporate level.
We may be required to pay monetary penalties to the IRS in certain circumstances, including if we fail to meet record-keeping requirements
intended to monitor our compliance with rules relating to the composition of a REIT's shareholders.
A 100% tax may be imposed on transactions between us and a TRS that do not reflect arm's-length terms.
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If we acquire appreciated assets from a corporation that is not a REIT (i.e., a corporation taxable under subchapter C of the Code) in a
transaction in which the adjusted tax basis of the assets in our hands is determined by reference to the adjusted tax basis of the assets in the
hands of the subchapter C corporation, we may be subject to tax on such appreciation at the highest corporate income tax rate then applicable if
we subsequently recognize gain on a disposition of any such assets during the five-year period following their acquisition from the subchapter C
corporation.
The earnings of our TRS will generally be subject to U.S. federal, state and corporate income tax, and we will be required to include, any
dividends received from the TRS in our distribution tests.
In addition, we and our subsidiaries may be subject to a variety of taxes, including payroll taxes and state, local, and foreign income, property, gross
receipts and other taxes on our assets and operations. We could also be subject to tax in situations and on transactions not presently contemplated.
Requirements for Qualification—General
The Code defines a REIT as a corporation, trust or association:
(1) that is managed by one or more trustees or directors;
(2) the beneficial ownership of which is evidenced by transferable shares, or by transferable certificates of
beneficial interest;
(3) that would be taxable as a domestic corporation but for its election to be subject to tax as a REIT;
(4) that is neither a financial institution nor an insurance company subject to specific provisions of the Code;
(5) the beneficial ownership of which is held by 100 or more persons;
(6) in which, during the last half of each taxable year, not more than 50% in value of the outstanding stock is
owned, directly or indirectly, by five or fewer "individuals" (as defined in the Code to include specified tax-
exempt entities); and
(7) that meets other tests described below, including with respect to the nature of its income and assets.
The Code provides that conditions (1) through (4) must be met during the entire taxable year, and that condition (5) must be met during at least
335 days of a taxable year of 12 months, or during a proportionate part of a shorter taxable year. Conditions (5) and (6) need not be met during a
corporation's initial tax year as a REIT (which, in our case, was 2014). Our charter provides restrictions regarding the ownership and transfers of our stock,
which are intended to assist us in satisfying the stock ownership requirements described in conditions (5) and (6) above. These restrictions, however, may
not ensure that we will, in all cases, be able to satisfy the share ownership requirements described in conditions (5) and (6) above. If we fail to satisfy these
share ownership requirements, except as provided in the next sentence, our status as a REIT will terminate. If, however, we comply with the rules contained
in the applicable Treasury regulations that require us to ascertain the actual ownership of our shares and we do not know, or would not have known through
the exercise of reasonable diligence, that we failed to meet the requirements described in condition (6) above, we will be treated as having met this
requirement.
To monitor compliance with the stock ownership requirements, we generally are required to maintain records regarding the actual ownership of our
stock. To do so, we must demand written statements each year from the record holders of significant percentages of our stock pursuant to which the record
holders must disclose the actual owners of the stock (i.e., the persons required to include our dividends in their gross income). We must maintain a list of
those persons failing or refusing to comply with this demand as part of our records. We could be subject to monetary penalties if we fail to comply with
these record-keeping requirements. If, upon request by the Company, a shareholder fails or refuses to comply with the demands, such holder will be
required by Treasury regulations to submit a statement with his, her or its tax return disclosing the actual ownership of our stock and other information.
Qualified REIT Subsidiaries
The Code provides that a corporation that is a "qualified REIT subsidiary" shall not be treated as a separate corporation, and all assets, liabilities and
items of income, deduction and credit of a "qualified REIT subsidiary" shall be treated as assets, liabilities and items of income, deduction and credit of the
REIT. A "qualified REIT subsidiary" is a corporation, all of the capital stock of which is owned by the REIT, that has not elected to be a "taxable REIT
subsidiary" (discussed below). In applying the requirements described herein, all of our "qualified REIT subsidiaries" will be ignored, and all assets,
liabilities
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and items of income, deduction and credit of such subsidiaries will be treated as our assets, liabilities and items of income, deduction and credit. These
subsidiaries, therefore, will not be subject to federal corporate income taxation, although they may be subject to state and local taxation. During 2021, we
had one qualified REIT subsidiary for most of the year, which elected to become a TRS in December 2021.
Taxable REIT Subsidiaries
In general, we may jointly elect with a subsidiary corporation, whether or not wholly-owned, to treat such subsidiary corporation as a TRS. We
generally may not own more than 10% of the securities of a taxable corporation, as measured by voting power or value, unless we and such corporation
elect to treat such corporation as a TRS. The separate existence of a TRS is not ignored for U.S. federal income tax purposes. Accordingly, a TRS generally
is subject to corporate income tax on its earnings, which may reduce the cash flow that we and our subsidiaries generate in the aggregate and may reduce
our ability to make distributions to our shareholders.
We are not treated as holding the assets of a TRS or as receiving any income that the TRS earns. Rather, the stock issued by the TRS to us is an asset
in our hands, and we treat the dividends paid to us, if any, as income. This treatment can affect our income and asset test calculations, as described below.
Because we do not include the assets and income of TRSs on a look-through basis in determining our compliance with the REIT requirements, we may use
such entities to undertake indirectly activities that the REIT rules might otherwise preclude us from doing directly or through pass-through subsidiaries. For
example, we may use a TRS to perform services or conduct activities that give rise to certain categories of income or to conduct activities that, if conducted
by us directly, would be treated in our hands as prohibited transactions.
The TRS rules impose a 100% excise tax on transactions between a TRS and its parent REIT or the REIT's tenants that are not conducted on an
arm's-length basis. We intend that all of our transactions with our TRS, if any, will be conducted on an arm's-length basis.
Ownership of Partnership Interests by a REIT
A REIT that is a partner in a partnership is deemed to own its proportionate share of the assets of the partnership and is deemed to receive the income
of the partnership attributable to such share. In addition, the character of the assets and gross income of the partnership retains the same character in the
hands of the REIT (except that, for purposes of the 10% of value asset test described below, our proportionate share of the partnership’s assets is based on
our proportionate interest in the equity and certain debt securities issued by the partnership, as described in the Code). Accordingly, our proportionate share
of the assets, liabilities and items of income of the OP, as defined below, are treated as assets, liabilities and items of income of ours for purposes of
applying the requirements described herein. We have control over the OP and intend to operate it in a manner that is consistent with the requirements for
qualification of GLPI as a REIT.
Income Tests
As a REIT, we must satisfy two gross income requirements on an annual basis. First, at least 75% of our gross income for each taxable year,
excluding gross income from sales of inventory or dealer property in "prohibited transactions," discharge of indebtedness and certain hedging transactions,
generally must be derived from "rents from real property," gains from the sale of real estate assets (but not including certain debt instruments of publicly
offered REITs that are not secured by mortgages on real property), interest income derived from mortgage loans secured by real property (including certain
types of mortgage-backed securities), dividends received from other REITs, and specified income from temporary investments. Second, at least 95% of our
gross income in each taxable year, excluding gross income from prohibited transactions, discharge of indebtedness and certain hedging transactions, must
be derived from some combination of income that qualifies under the 75% gross income test described above, as well as other dividends, interest, and gain
from the sale or disposition of stock or securities, which need not have any relation to real property. Income and gain from certain hedging transactions will
be excluded from both the numerator and the denominator for purposes of both the 75% and 95% gross income tests.
Rents received by a REIT will qualify as "rents from real property" in satisfying the gross income requirements described above only if several
conditions are met.
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The amount of rent must not be based in whole or in part on the income or profits of any person. However, an amount received or accrued
generally will not be excluded from the term "rents from real property" solely by reason of being based on a fixed percentage or percentages of
gross receipts or sales.
Rents received from a tenant will not qualify as "rents from real property" in satisfying the gross income tests if the REIT, or a direct or indirect
owner of 10% or more of the REIT, directly or constructively, owns 10% or more of such tenant (a "Related Party Tenant"). However, rental
payments from a TRS will qualify as rents from real property even
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if we own more than 10% of the total value or combined voting power of the TRS if (i) at least 90% of the property is leased to unrelated tenants
and the rent paid by the TRS is substantially comparable to the rent paid by the unrelated tenants for comparable space or (ii) the property leased is
a "qualified lodging facility," as defined in Section 856(d)(9)(D) of the Code, or a "qualified health care property," as defined in Section 856(e)(6)
(D)(i) of the Code, and certain other conditions are satisfied.
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Rent attributable to personal property leased in connection with a lease of real property will not qualify as "rents from real property" if such rent
exceeds 15% of the total rent received under the lease.
The REIT generally must not operate or manage the property or furnish or render services to tenants, except through an "independent contractor"
who is adequately compensated and from whom the REIT derives no income, or through a TRS. The "independent contractor" requirement,
however, does not apply to the extent the services provided by the REIT are "usually or customarily rendered" in connection with the rental of
space for occupancy only, and are not otherwise considered "rendered to the occupant." In addition, a de minimis rule applies with respect to non-
customary services. Specifically, if the value of the non-customary service income with respect to a property (valued at no less than 150% of the
direct costs of performing such services) is 1% or less of the total income derived from the property, then all rental income except the non-
customary service income will qualify as "rents from real property." A TRS may provide services (including noncustomary services) to a REIT’s
tenants without "tainting" any of the rental income received by the REIT, and will be able to manage or operate properties for third parties and
generally engage in other activities unrelated to real estate.
We do not anticipate receiving rent that is based in whole or in part on the income or profits of any person (except by reason of being based on a
fixed percentage or percentages of gross receipts or sales consistent with the rules described above). Our former parent, PENN, received a private letter
ruling from the IRS that concluded certain rental formulas under the PENN Master Lease will not cause any amounts received under the PENN Master
Lease to be treated as other than rents from real property. While we do not expect to seek similar rulings for additional leases we enter into that have
substantially similar terms as the PENN Master Lease, we intend to treat amounts received under those leases consistent with the conclusions in the ruling,
though there can be no assurance that the IRS will not challenge such treatment. We also do not anticipate receiving more than a de minimis amount of
rents from any Related Party Tenant or rents attributable to personal property leased in connection with real property that will exceed 15% of the total rents
received with respect to such real property. We may receive certain types of income that will not qualify under the 75% or 95% gross income tests. In
particular, dividends received from a TRS will not qualify under the 75% test. We believe, however, that the aggregate amount of such items and other non-
qualifying income in any taxable year will not cause GLPI to exceed the limits on non-qualifying income under either the 75% or 95% gross income tests.
We may directly or indirectly receive distributions from TRSs or other corporations that are not REITs or qualified REIT subsidiaries. These
distributions generally are treated as dividend income to the extent of the earnings and profits of the distributing corporation. Such distributions will
generally constitute qualifying income for purposes of the 95% gross income test, but not for purposes of the 75% gross income test. Any dividends that we
receive from another REIT or qualified REIT subsidiary, however, will be qualifying income for purposes of both the 95% and 75% gross income tests.
We believe that we have and will continue to be in compliance with these gross income tests. If we fail to satisfy one or both of the 75% or 95%
gross income tests for any taxable year, we may still qualify to be taxed as a REIT for such year if we are entitled to relief under applicable provisions of
the Code. These relief provisions will be generally available if (i) our failure to meet these tests was due to reasonable cause and not due to willful neglect
and (ii) following our identification of the failure to meet the 75% or 95% gross income test for any taxable year, we file a schedule with the IRS setting
forth each item of our gross income for purposes of the 75% or 95% gross income test for such taxable year in accordance with Treasury regulations. It is
not possible to state whether we would be entitled to the benefit of these relief provisions in all circumstances. If these relief provisions are inapplicable to
a particular set of circumstances, we will not qualify to be taxed as a REIT. Even if these relief provisions apply, and we retain our status as a REIT, the
Code imposes a tax based upon the amount by which we fail to satisfy the particular gross income test.
Asset Tests
At the close of each calendar quarter, we must also satisfy five tests relating to the nature of our assets. First, at least 75% of the value of our total
assets must be represented by some combination of "real estate assets," cash, cash items, U.S. government securities, and, under some circumstances, stock
or debt instruments purchased with new capital. For this purpose, real estate assets include interests in real property (such as land, buildings, leasehold
interest in real property and, for taxable years that began or after January 1, 2016, personal property leased with real property if the rents attributable to the
personal property would be rents from real property under the income tests discussed above), interests in mortgages on real property or
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on interests in real property, shares in other qualifying REITs, and stock or debt instruments held for less than one year purchased with the proceeds from
an offering of shares of our stock or certain debt and, for tax years that began on or after January 1, 2016, debt instruments issued by publicly offered
REITs. Assets that do not qualify for purposes of the 75% asset test are subject to the additional asset tests described below.
Second, the value of any one issuer's securities that we own may not exceed 5% of the value of our total assets.
Third, we may not own more than 10% of any one issuer's outstanding securities, as measured by either voting power or value. The 5% and 10%
asset tests do not apply to securities of TRSs and qualified REIT subsidiaries and the 10% asset test does not apply to "straight debt" having specified
characteristics and to certain other securities described below. Solely for purposes of the 10% asset test, the determination of our interest in the assets of a
partnership or limited liability company in which we own an interest will be based on our proportionate interest in any securities issued by the partnership
or limited liability company, excluding for this purpose, certain securities described in the Code. The safe harbor under which certain types of securities are
disregarded for purposes of the 10% value limitation includes (1) straight debt securities (including straight debt securities that provide for certain
contingent payments); (2) any loan to an individual or an estate; (3) any rental agreement described in Section 467 of the Code, other than with a "related
person"; (4) any obligation to pay rents from real property; (5) certain securities issued by a State or any political subdivision thereof, or the
Commonwealth of Puerto Rico; (6) any security issued by a REIT; and (7) any other arrangement that, as determined by the Secretary of the Treasury, is
excepted from the definition of a security. In addition, for purposes of applying the 10% value limitation, (a) a REIT’s interest as a partner in a partnership
is not considered a security; (b) any debt instrument issued by a partnership is not treated as a security if at least 75% of the partnership’s gross income is
from sources that would qualify for the 75% REIT gross income test; and (c) any debt instrument issued by a partnership is not treated as a security to the
extent of the REIT’s interest as a partner in the partnership.
Fourth, the aggregate value of all securities of TRSs that we hold, together with other non-qualified assets (such as furniture and equipment or other
tangible personal property, or non-real estate securities) may not, in the aggregate, exceed 20% of the value of our total assets.
Fifth, not more than 25% of the value of our gross assets may be represented by debt instruments of publicly offered REITs that are not secured by
mortgages on real property or interests in real property.
However, certain relief provisions are available to allow REITs to satisfy the asset requirements or to maintain REIT qualification notwithstanding
certain violations of the asset and other requirements. For example, if we should fail to satisfy the asset tests at the end of a calendar quarter, such a failure
would not cause us to lose our REIT qualification if we (i) satisfied the asset tests at the close of the preceding calendar quarter and (ii) the discrepancy
between the value of our assets and the asset requirements was not wholly or partly caused by an acquisition of non-qualifying assets, but instead arose
from changes in the relative market values of our assets. If the condition described in (ii) was not satisfied, we still could avoid disqualification by
eliminating any discrepancy within 30 days after the close of the calendar quarter in which it arose or by making use of the relief provisions described
above.
In the case of de minimis violations of the 10% and 5% asset tests, a REIT may maintain its qualification despite a violation of such requirements if
(i) the value of the assets causing the violation does not exceed the lesser of 1% of the REIT's total assets and $10,000,000 and (ii) the REIT either disposes
of the assets causing the failure within six months after the last day of the quarter in which it identifies the failure, or the relevant tests are otherwise
satisfied within that time frame.
Even if we did not qualify for the foregoing relief provisions, one additional provision allows a REIT which fails one or more of the asset
requirements to nevertheless maintain its REIT qualification if (i) the REIT provides the IRS with a description of each asset causing the failure, (ii) the
failure is due to reasonable cause and not willful neglect, (iii) the REIT pays a tax equal to the greater of (a) $50,000 per failure and (b) the product of the
net income generated by the assets that caused the failure multiplied by the highest applicable corporate tax rate (currently 21%) and (iv) the REIT either
disposes of the assets causing the failure within six months after the last day of the quarter in which it identifies the failure, or otherwise satisfies the
relevant asset tests within that time frame.
We believe that we have been and will continue to be in compliance with the asset tests described above.
Annual Distribution Requirements
In order to qualify to be taxed as a REIT, we are required to distribute dividends, other than capital gain dividends, to our shareholders in an amount
at least equal to:
(i)
the sum of
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(a) 90% of our REIT taxable income, computed without regard to our net capital gains and the deduction for dividends paid; and
(b) 90% of our after tax net income, if any, from foreclosure property (as described below); minus
(ii)
the excess of the sum of specified items of non-cash income over 5% of our REIT taxable income, computed without regard to our net
capital gain and the deduction for dividends paid.
We generally must make these distributions in the taxable year to which they relate, or in the following taxable year if declared before we timely file
our tax return for the year and if paid with or before the first regular dividend payment after such declaration. These distributions will be treated as received
by our shareholders in the year in which paid. In order for distributions to be counted as satisfying the annual distribution requirements for REITs, and to
provide us with a REIT-level tax deduction, the distributions must not be "preferential dividends." A dividend is not a preferential dividend if the
distribution is (i) pro rata among all outstanding shares of stock within a particular class and (ii) in accordance with any preferences among different classes
of stock as set forth in our organizational documents. Given our status as a "publicly offered REIT" (within the meaning of the Code), the preferential
dividend rules do not apply to us for taxable years beginning after December 31, 2014.
To the extent that we distribute at least 90%, but less than 100%, of our REIT taxable income, as adjusted, we will be subject to tax at ordinary
corporate tax rates on the retained portion. We may elect to retain, rather than distribute, some or all of our net long-term capital gains and pay tax on such
gains. In this case, we could elect for our shareholders to include their proportionate shares of such undistributed long-term capital gains in income, and to
receive a corresponding credit for their share of the tax that we paid. Our shareholders would then increase the adjusted basis of their stock by the
difference between (i) the amounts of capital gain dividends that we designated and that they include in their taxable income, minus (ii) the tax that we paid
on their behalf with respect to that income.
To the extent that in the future we may have available net operating losses carried forward from prior tax years, such losses may reduce the amount of
distributions that we must make in order to comply with the REIT distribution requirements.
If we fail to distribute during each calendar year at least the sum of (i) 85% of our ordinary income for such year, (ii) 95% of our capital gain net
income for such year and (iii) any undistributed net taxable income from prior periods, we will be subject to a non-deductible 4% excise tax on the excess
of such required distribution over the sum of (a) the amounts actually distributed, plus (b) the amounts of income we retained and on which we have paid
corporate income tax.
We expect that our REIT taxable income will be less than our cash flow because of depreciation and other non-cash charges included in computing
REIT taxable income. Accordingly, we anticipate that we generally will have sufficient cash or liquid assets to enable us to satisfy the distribution
requirements described above. However, from time to time, we may not have sufficient cash or other liquid assets to meet these distribution requirements
due to timing differences between the actual receipt of income and actual payment of deductible expenses, and the inclusion of income and deduction of
expenses in determining our taxable income. In addition, we may decide to retain our cash, rather than distribute it, in order to repay debt, acquire assets, or
for other reasons. If these timing differences occur, we may borrow funds to pay dividends or pay dividends through the distribution of other property
(including shares of our stock) in order to meet the distribution requirements, while preserving our cash.
If our taxable income for a particular year is subsequently determined to have been understated, we may be able to rectify a resultant failure to meet
the distribution requirements for a year by paying "deficiency dividends" to shareholders in a later year, which may be included in our deduction for
dividends paid for the earlier year. In this case, we may be able to avoid losing REIT qualification or being taxed on amounts distributed as deficiency
dividends, subject to the 4% excise tax described above. We will be required to pay interest based on the amount of any deduction taken for deficiency
dividends.
For purposes of the 90% distribution requirement and excise tax described above, any distribution must be paid in the taxable year to which they
relate, or in the following taxable year if such distributions are declared in October, November or December of the taxable year, are payable to shareholders
of record on a specified date in any such month, and are actually paid before the end of January of the following year. Such distributions are treated as both
paid by us and received by our shareholders on December 31 of the year in which they are declared.
In addition, at our election, a distribution for a taxable year may be declared before we timely file our tax return for the year, provided we pay such
distribution with or before our first regular dividend payment after such declaration, and such payment is made during the 12-month period following the
close of such taxable year. Such distributions are taxable to our shareholders in the year in which paid, even though the distributions relate to our prior
taxable year for purposes of the 90% distribution requirement.
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We believe that we have satisfied the annual distribution requirements for the year ended December 31, 2022. Although we intend to satisfy the
annual distribution requirements to continue to qualify as a REIT for the year ending December 31, 2023 and thereafter, economic, market, legal, tax or
other considerations could limit our ability to meet those requirements.
Failure to Qualify
If we fail to satisfy one or more requirements for REIT qualification other than the income or asset tests, we could avoid disqualification as a REIT if
our failure is due to reasonable cause and not to willful neglect and we pay a penalty of $50,000 for each such failure. Relief provisions are also available
for failures of the income tests and asset tests, as described above in "Income Tests" and "Asset Tests."
If we fail to qualify for taxation as a REIT in any taxable year, and the relief provisions described above do not apply, we would be subject to tax,
including any applicable alternative minimum tax, on our taxable income at regular corporate rates. We cannot deduct distributions to shareholders in any
year in which we are not a REIT, nor would we be required to make distributions in such a year. In this situation, to the extent of current and accumulated
earnings and profits (as determined for U.S. federal income tax purposes), distributions to shareholders would be taxable as regular corporate dividends.
Such dividends paid to U.S. shareholders that are individuals, trusts and estates may be taxable at the preferential income tax rates (i.e., currently the 20%
maximum U.S. federal rate) for qualified dividends. In addition, subject to the limitations of the Code, corporate distributees may be eligible for the
dividends received deduction. Unless we are entitled to relief under specific statutory provisions, we would also be disqualified from re-electing to be taxed
as a REIT for the four taxable years following the year during which we lost our qualification. It is not possible to state whether, in all circumstances, we
would be entitled to this statutory relief.
2021 GLP Holdings Inc. Operating Asset Sales, TRS Merger, and E&P Purging Distribution
On December 17, 2021, we completed our sale of the membership interests of Louisiana Casino Cruises, LLC to a third-party operator and tenant,
which was preceded by its conversion from a C corporation and transfer of the real property assets to GLP Holdings, Inc. We previously completed a
similar transaction with the membership interests of Penn Cecil Maryland, LLC earlier in 2021. On December 23, 2021, GLP Holdings, Inc. was merged
with and into GLP Capital, L.P. in a transaction which was intended to be treated as a tax-free liquidation of GLP Holdings, Inc., a TRS, into the REIT. The
result of such transaction was intended to wind up GLP Holdings, Inc. after its taxable sale of the operating assets and have the REIT receive the real
property assets in a carryover basis transaction for income tax purposes prior to the completion of the UPREIT Transaction discussed below. As a result of
the tax-free nature of the transaction, the REIT inherited all of GLP Holdings, Inc.'s C corporation earnings and profits earned while it was a TRS. Under
Section 857 of the Code, as of the close of the taxable year, a REIT must not have earnings and profits which were accumulated in any non-REIT year, so
the REIT was required to distribute any GLP Holdings, Inc. earnings and profits which had accumulated prior to its merger with GLP Capital, L.P. The
Company’s Board of Directors declared a special earnings and profits cash dividend of $0.24 per share of its common stock payable on January 7, 2022 to
shareholders of record on December 27, 2021. We believe that in accordance with Code Section 857(b)(9), such dividend will be treated as having been
paid by the REIT and received by the REIT shareholders on or prior to December 31, 2021 to the extent it was treated as satisfying the REIT’s
requirements to purge any earnings and profits from a non-REIT year.
2021 UPREIT Transaction
On December 29, 2021, we completed a transaction with Cordish whereby they contributed certain real property assets into GLP Capital, L.P. (our
operating partnership, or the “OP”) in exchange for newly issued partnership interests in the OP. As a result of the contribution, the UPREIT Transaction
was consummated. Prior to the UPREIT Transaction, the OP was owned by the REIT and another entity wholly owned by the REIT and disregarded for
income tax purposes, making the OP disregarded as separate from the REIT. The structure of the transaction is intended to allow the REIT to still receive
rents from real property on a passthrough basis from the OP, and it will continue to own an interest in real property through its ownership of the OP
partnership interests as its sole asset, as discussed below. Based on this, we believe that the UPREIT Transaction will not impact our ability to meet the
requirements of the REIT asset, income, and distribution tests described above.
Tax Aspects of Investment in the Operating Partnership
We may hold investments through entities that are classified as partnerships for U.S. federal income tax purposes, including our interest in the OP. In
general, partnerships are passthrough entities that are not subject to U.S. federal income tax. Rather, partners are allocated their proportionate shares of the
items of income, gain, loss, deduction and credit of a partnership, and are subject to tax on these items without regard to whether the partners receive a
distribution from the partnership. We will include in our income our proportionate share of these partnership items of the OP for purposes of the various
REIT income
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tests and in the computation of our REIT taxable income. Moreover, for purposes of the REIT asset tests, we will include our proportionate share of assets
held by the OP.
The investment by us in the OP involves special tax considerations, including the possibility of a challenge by the IRS to the status of the OP as a
partnership, as opposed to an association taxable as a corporation, for U.S. federal income tax purposes. If the OP were treated as an association for U.S.
federal income tax purposes, it would be taxable as a corporation and, therefore, could be subject to an entity-level tax on its income.
Treasury regulations provide that a domestic business entity not otherwise organized as a corporation may elect to be treated as a partnership or
disregarded entity for U.S. federal income tax purposes. Generally, an entity will be classified as a partnership or disregarded entity (depending on its
number of owners) for U.S. federal income tax purposes unless it elects otherwise. The OP intends to be classified as a partnership under these Treasury
regulations. We have not requested and do not intend to request a ruling from the IRS that the OP will be classified as partnerships for U.S. federal income
tax purposes.
To be a partnership for U.S. federal income tax purposes, the OP generally must not be a “publicly traded partnership”. A publicly traded partnership
is a partnership whose interests are traded on an established securities market or are readily tradable on a secondary market (or a substantial equivalent). A
publicly traded partnership is generally treated as a corporation for U.S. federal income tax purposes, but will not be so treated if, for each taxable year
beginning after December 31, 1987 in which it was classified as a publicly traded partnership, at least 90% of the partnership’s gross income consisted of
specified passive income, including real property rents (which includes rents that would be qualifying income for purposes of the 75% gross income test,
with certain modifications that make it easier for the rents to qualify for the 90% passive income exception), gains from the sale or other disposition of real
property, interest, and dividends (the “90% passive income exception”).
Treasury regulations provide limited safe harbors from treatment as a publicly traded partnership. We expect that the OP will fall within one of the
“safe harbors” for the partnership to avoid being classified as a publicly traded partnership. However, no assurance can be given regarding the OP's ability
to satisfy the requirements of some of these safe harbors and accordingly no assurance can be given that the OP would not be treated as a publicly traded
partnership. Even if the OP failed to meet one of the safe harbors, it generally will not be treated as a corporation if it qualifies for the 90% passive income
exception discussed immediately above.
Partnership Allocations
Although a partnership agreement generally will determine the allocation of income and losses among partners, such allocations will be disregarded
for tax purposes if they do not comply with the provisions of Section 704(b) of the Code and the Treasury regulations promulgated thereunder, which
require that partnership allocations respect the economic arrangement of the partners. If an allocation is not recognized for U.S. federal income tax
purposes, the item subject to the allocation will be reallocated in accordance with the partners’ interests in the partnership, which will be determined
considering all of the facts and circumstances relating to the economic arrangement of the partners with respect to such item. The OP’s allocations of
taxable income and loss are intended to comply with the requirements of Section 704(b) of the Code and the Treasury regulations promulgated thereunder.
Pursuant to Section 704(c) of the Code, items of income, gain, loss, and deduction attributable to appreciated or depreciated property that is
contributed to a partnership in exchange for an interest in the partnership must be allocated for U.S. federal income tax purposes in a manner such that the
contributor is charged with or benefits from the unrealized gain or unrealized loss associated with the property at the time of the contribution. The amount
of such unrealized gain or unrealized loss is generally equal to the difference between the fair market value of the contributed property at the time of
contribution and the adjusted tax basis of such property at the time of contribution. Such allocations are solely for U.S. federal income tax purposes and do
not affect other economic or legal arrangements among the partners.
Our OP has entered into transactions involving the contribution to the OP of appreciated property, and the OP may enter into such transactions in the
future. The partnership agreement of the OP requires allocations of income, gain, loss, and deduction attributable to contributed property to be made in a
manner that is consistent with Section 704(c) of the Code. Treasury regulations issued under Section 704(c) give partnerships a choice of several methods
of allocating taxable income with respect to contributed properties (and the tax protection agreements entered into in connection with the contributions of
properties to the OP require that a certain method be used). Depending upon the method used, (1) our tax depreciation deductions attributable to those
properties may be lower than they would have been if our OP had acquired those properties for cash and (2) in the event of a sale of such properties, we
could be allocated gain in excess of our corresponding economic or book gain. These allocations may cause us to recognize taxable income in excess of
cash proceeds received by us, which might
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adversely affect our ability to comply with the REIT distribution requirements or result in our shareholders recognizing additional dividend income without
an increase in distributions.
Assets contributed to a partnership in a tax-free transaction generally retain the same depreciation method and recovery period as they had in the
hands of the partner who contributed them to the partnership. Accordingly, a substantial amount of the OP’s depreciation deductions for its real property are
based on the historic tax depreciation schedules for the properties prior to their contribution to the OP.
Basis in OP Interest
Our adjusted tax basis in a partnership in which we have an interest (including the OP) generally (1) will be equal to the amount of cash and the basis
of any other property contributed to such partnership by us, (2) will be increased by (a) our allocable share of such partnership’s income and (b) our
allocable share of any indebtedness of such partnership, and (3) will be reduced, but not below zero, by our allocable share of (a) such partnership’s loss
and (b) the amount of cash and the tax basis of any property distributed to us and by constructive distributions resulting from a reduction in our share of
indebtedness of such partnership.
If our allocable share of the loss (or portion thereof) of any partnership in which we have an interest would reduce the adjusted tax basis of our
partnership interest in such partnership below zero, the recognition of such loss will be deferred until such time as the recognition of such loss (or portion
thereof) would not reduce our adjusted tax basis below zero. To the extent that distributions to us from a partnership, or any decrease in our share of the
nonrecourse indebtedness of a partnership (each such decrease being considered a constructive cash distribution to the partners), would reduce our adjusted
tax basis below zero, such distributions (including such constructive distributions) would constitute taxable income to us. Such distributions and
constructive distributions normally would be characterized as long-term capital gain if our interest in such partnership has been held for longer than the
long-term capital gain holding period (currently 12 months).
Sale of Partnership Property
Generally, any gain realized by a partnership on the sale of property held by the partnership for more than 12 months will be long-term capital gain,
except for any portion of such gain that is treated as depreciation or cost recovery recapture. However, under requirements applicable to REITs under the
Code, our share as a partner of any gain realized by the OP on the sale of any property held as inventory or other property held primarily for sale to
customers in the ordinary course of a trade or business will be treated as income from a prohibited transaction that is subject to a 100% penalty tax.
Legislative or Other Actions Affecting REITs and Partnerships
The present U.S. federal income tax treatment of REITs may be modified, possibly with retroactive effect, by legislative, judicial or administrative
action at any time. The REIT rules are constantly under review by persons involved in the legislative process and by the IRS and the Treasury which may
result in statutory changes as well as revisions to regulations and interpretations. Changes to the U.S. federal tax laws and interpretations thereof could
adversely affect an investment in our common stock.
On December 22, 2017, H.R. 1, known as the Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the
budget for fiscal year 2018 (the "Tax Cuts and Jobs Act") was signed into law. The Tax Cuts and Jobs Act made significant changes to the U.S. federal
income taxation of individuals and corporations, generally effective for taxable years beginning after December 31, 2017. In addition to reducing corporate
and individual income tax rates, the Tax Cuts and Jobs Act eliminates or restricts various deductions that, along with other provisions, may change the way
that we calculate our REIT taxable income and our TRS's taxable income. Significant provisions of the Tax Cuts and Jobs Act that investors should be
aware of include provisions that: (i) lower the corporate income tax rate to 21%, (ii) provide noncorporate taxpayers with a deduction of up to 20% of
certain income earned through partnerships and REITs, (iii) limit the net operating loss deduction to 80% of taxable income, where taxable income is
determined without regard to the net operating loss deduction itself, generally eliminates net operating loss carry backs and allow unused net operating
losses to be carried forward indefinitely, (iv) expand the ability of businesses to deduct the cost of certain property investments in the year in which the
property is purchased, and (v) generally lower tax rates for individuals and other noncorporate taxpayers, while limiting deductions such as miscellaneous
itemized deductions and state and local tax deductions. In addition, the Tax Cuts and Jobs Act limits the deduction for net interest expense incurred by a
business to 30% of the "adjusted taxable income" of the taxpayer. The Coronavirus Aid, Relief, and Economic Stability Act increased the limitation to 50%
of “adjusted taxable income” for tax years beginning in 2019 and 2020. The limitation on the interest expense deduction does not apply to certain small-
business taxpayers or electing real property trades or businesses, such as any real property development, redevelopment, construction,
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reconstruction, acquisition, conversion, rental, operation, management, leasing, or brokerage trade or business. Making the election to be treated as a real
property trade or business requires the electing real property trade or business to depreciate non-residential real property, residential rental property, and
qualified improvement property over a longer period using the alternative depreciation system. We have not yet elected out of the new interest expense
limitation.
The Bipartisan Budget Act of 2015 (the “BBA”) revised the rules applicable to federal income tax audits of partnerships (such as the OP) and the
collection of any tax resulting from any such audits or other tax proceedings, generally for taxable years beginning after December 31, 2017. Under the
applicable rules, a partnership itself may be liable for a tax computed by reference to the hypothetical increase in partner-level taxes (including interest and
penalties) resulting from an adjustment of partnership tax items on audit, regardless of changes in the composition of the partners (or their relative
ownership) between the year under audit and the year of the adjustment. The rules also include an elective alternative method under which the additional
taxes resulting from the adjustment are assessed against the affected partners, subject to a higher rate of interest than otherwise would apply. Although it is
uncertain how these rules will be implemented, it is possible that they could result in partnerships in which we directly or indirectly invest being required to
pay additional taxes, interest and penalties as a result of an audit adjustment, and we, as a direct or indirect partner of those partnerships could be required
to bear the economic burden of those taxes, interest and penalties even though we, as a REIT, may not otherwise have been required to pay additional
corporate-level taxes as a result of the related audit adjustment. The changes created by these rules are sweeping and, in some respects, dependent on the
promulgation of future regulations or other guidance by the U.S. Treasury.
Shareholders are urged to consult with their own tax advisors with respect to the impact that the Tax Cuts and Jobs Act, the BBA, and other
legislation may have on their investment and the status of legislative, regulatory or administrative developments and proposals and their potential effect on
their investment in our shares.
Supplemental U.S. Federal Income Tax Considerations
The following discussion supplements and updates the disclosures under “Certain United States Federal Income Tax Considerations” in the
prospectus dated August 12, 2022, contained in our Registration Statement on Form S-3 filed with the SEC on August 12, 2022. Capitalized terms herein
that are not otherwise defined shall have the same meaning as when used in such disclosures (as supplemented).
On December 29, 2022, the Internal Revenue Service promulgated final Treasury Regulations under Sections 897, 1441, 1445, and 1446 of the
Code that were, in part, intended to coordinate various withholding regimes for non-U.S. stockholders. The new Treasury Regulations provide guidance
regarding qualified foreign pension funds and are in large part consistent with the previously issued proposed Treasury Regulations.
Accordingly, the last two sentences of the first paragraph under the heading “Certain United States Federal Income Tax Considerations—Taxation
of Stockholders and Potential Tax Consequences of Their Investment in Shares of Common Stock or Preferred Stock—Taxation of Non-U.S. Stockholders—
Qualified Foreign Pension Funds” are hereby deleted and replaced with the following:
Under Treasury Regulations, subject to the discussion below regarding “qualified holders,” a “qualified controlled entity” also is not generally
treated as a foreign person for purposes of FIRPTA. A qualified controlled entity generally includes a trust or corporation organized under the laws of a
foreign country all of the interests of which are held by one or more qualified foreign pension funds either directly or indirectly through one or more
qualified controlled entities.
Additionally, the following two paragraphs are added after the first paragraph under the heading “Certain United States Federal Income Tax
Considerations—Taxation of Stockholders and Potential Tax Consequences of Their Investment in Shares of Common Stock or Preferred Stock—Taxation
of Non-U.S. Stockholders—Qualified Foreign Pension Funds”:
Treasury Regulations further require that a qualified foreign pension fund or qualified controlled entity will not be exempt from FIRPTA with
respect to dispositions of U.S. real property interests or REIT distributions attributable to the same unless the qualified foreign pension fund or qualified
controlled entity is a “qualified holder.” To be a qualified holder, a qualified foreign pension fund or qualified controlled entity must satisfy one of two
alternative tests at the time of the disposition of the U.S. real property interest or the REIT distribution. Under the first test, a qualified foreign pension fund
or qualified controlled entity is a qualified holder if it owned no U.S. real property interests as of the earliest date during an uninterrupted period ending on
the date of the disposition or distribution during which it qualified as a qualified foreign pension fund or qualified controlled entity. Alternatively, if a
qualified foreign pension fund or qualified controlled entity held U.S. real property interests as of the earliest date during the period described in the
preceding sentence, it can be a qualified holder only if it satisfies certain testing period requirements.
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Treasury Regulations also provide that a foreign partnership all of the interests of which are held by qualified holders, including through one or
more partnerships, may certify its status as such and will not be treated as a foreign person for purposes of withholding under FIRPTA.
Regulation
The ownership, operation, and management of, and provision of certain products and services to, gaming and racing facilities are subject to pervasive
regulation. Gaming laws are generally based upon declarations of public policy designed to protect gaming consumers and the viability and integrity of the
gaming industry. Gaming laws also may be designed to protect and maximize state and local revenues derived through taxes and licensing fees imposed on
gaming industry participants as well as to enhance economic development and tourism. To accomplish these public policy goals, gaming laws establish
procedures to ensure that participants in the gaming industry, including landlords and other suppliers, meet certain standards of character and fitness. In
addition, gaming laws require gaming industry participants to:
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ensure that unsuitable individuals and organizations have no role in asset ownership and/or operations of gaming assets, including suppliers, and
in those jurisdictions that require landowner licensure, ownership of the real property;
establish procedures designed to prevent cheating and fraudulent practices;
establish and maintain responsible accounting practices and procedures;
maintain effective controls over their financial practices, including establishment of minimum procedures for internal fiscal affairs and the
safeguarding of assets and revenues;
maintain systems for reliable record keeping;
file periodic reports with gaming regulators;
ensure that contracts and financial transactions are commercially reasonable, reflect fair market value and are arms-length transactions; and
establish programs to promote responsible gaming.
These regulations impact our business in two important ways: (1) our ownership of land and buildings in which gaming activities are operated by
third party tenants pursuant to long-term leases; and (2) the operations of our gaming tenants. Further, many gaming and racing regulatory agencies in the
jurisdictions in which our gaming tenants operate require GLPI and its affiliates to maintain a license or finding of suitability as a key business entity,
principal affiliate, business entity, qualifier, operator or supplier because of its status as landlord, including Colorado, Delaware, Illinois, Indiana, Louisana,
Maryland, Massachusetts, Mississippi, Missouri, New Jersey, Ohio and Pennsylvania.
Our businesses and those operated by our tenants are subject to various federal, state and local laws and regulations in addition to gaming
regulations. These laws and regulations include, but are not limited to, restrictions and conditions concerning alcoholic beverages, environmental matters,
employees, health care, currency transactions, taxation, zoning and building codes, and marketing and advertising. Such laws and regulations could change
or could be interpreted differently in the future, or new laws and regulations could be enacted. Material changes, new laws or regulations, or material
differences in interpretations by courts or governmental authorities could adversely affect our operating results.
Insurance
We have comprehensive general liability, commercial property fiduciary, directors and officers liability, and business interruption insurance covering
our business. In regards to our properties subject to triple-net leases, the lease agreements require our tenants to procure and maintain their own
comprehensive general liability, commercial property and business interruption coverage, including protection for our insurable interests as the landlord.
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Environmental Matters
Our properties are subject to U.S. federal, state and local environmental laws governing and regulating, among other things, air emissions, wastewater
discharges and the handling and disposal of wastes, including medical wastes, and required actions and response efforts. Certain of the properties we own
utilize or have utilized above or underground storage tanks to store heating oil for use at the properties. Other properties were built during the time that
asbestos-containing building materials were routinely installed in residential and commercial structures. Certain of the real estate assets owned by GLPI
were developed and constructed on former commercial and industrial remediated sites. In connection with the ownership of our real property, we could be
legally responsible for environmental liabilities or costs relating to a release of hazardous substances or other regulated materials at or emanating from such
property.
Pursuant to applicable environmental laws and regulations, a current or previous owner or operator of real property may be required to investigate,
remove and/or remediate a release of hazardous substances or other regulated materials at, or emanating from, such property. Further, under certain
circumstances, such owners or operators of real property may be held liable for property damage, personal injury and/or natural resource damage resulting
from or arising in connection with such releases. Certain of these laws have been interpreted to provide for joint and several liability unless the harm is
divisible and there is a reasonable basis for allocation of responsibility. We also may be liable under certain of these laws for damage that occurred prior to
our ownership of a property or at a site where we or our tenants sent wastes for disposal.
For most triple-net leases to which we are a party, environmental liabilities arising from the businesses and operations are retained by our tenants, and
the tenants are required to indemnify GLPI (and its subsidiaries, directors, officers, employees, agents and certain other related parties) against any claims,
losses, orders or fines arising from or relating to such environmental liabilities. Further, our triple-net leases obligate our tenants thereunder to comply with
applicable environmental laws and regulations. We expect that future leases with new parties and renewals with existing tenants will include the same
provisions. A tenant’s failure to comply could result in fines and penalties or the requirement to undertake corrective actions which could result in
significant costs to the tenant and thus adversely affect their ability to meet their obligations to us.
In order to assess the potential for such liability, we conduct routine due diligence of environmental conditions prior to acquisition. We are not aware
of any environmental issues or recognized environmental conditions that are expected to have a material impact on the operations of any of our properties.
Corporate Responsibility and Environmental, Social, Governance (ESG)
At GLPI, we believe that corporate responsibility and environmental and community stewardship is an integral component of growing shareholder
value. With this in mind, we continue to integrate ESG practices and implement social and sustainability strategies and initiatives intended to create long-
term value for our shareholders, employees and other stakeholders.
ESG opportunities, risks and strategy are developed and managed by the Company’s management team collaboratively with the Company's newly
created cross-functional ESG Steering Committee. The Company’s Nominating and Corporate Governance Committee oversees Company matters relating
to ESG, including oversight of the Company’s policies and strategies relating to human capital management, corporate culture, and diversity, equity, and
inclusion, which are discussed thoughtfully by the Committee and reported to our Board of Directors. The ESG Steering Committee meets regularly and
reports to the Nominating and Corporate Governance Committee on a quarterly basis and more frequently, as needed.
Environmental Sustainability
We are committed to conducting our business in an environmentally conscious manner to uphold our responsibility as a corporate citizen. We
strive to maintain a corporate environment that fosters a sense of community and well-being and that encourages our employees to focus on their long-term
success along with the long-term success of the Company. We promote sustainable practices and environmental stewardship throughout the organization,
with a particular emphasis on energy efficiency, recycling, indoor environmental quality, and environmental awareness.
With the exception of our corporate headquarters, our properties are leased to gaming operators in triple-net lease arrangements, meaning each
operator is responsible for business operations, maintenance, insurance, taxes, utilities, and other property-related expenses. The oversight and control of all
energy and water usage and consumption and operations-related
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sustainability strategies related thereto is the sole responsibility of our tenants. Consequently, fostering a strong channel of communication with our tenants
is an important component in the evolution of the environmental sustainability of our properties and establishing long-term, successful relationships critical
to the success of our business. In 2022, through our formalized Tenant Partnership Program, we discussed the importance of utility data collection and
sharing and provided our tenants with accessibility and use of a third-party platform to aid in the aggregation and compilation of utility data necessary to
determine each tenant’s greenhouse gas emissions at our properties. We also implemented certain green lease provisions with respect to data collection in
many of our leases.
We are evaluating climate-related risks and opportunities to include in our near and long-term environmental strategies and disclosure. We
published our first standalone ESG Tearsheet in 2022 and expect to report updated metrics and environmental data in 2023. We also refined our process for
Scope 1 and 2 emissions data collection and reporting through the engagement of a third-party vendor and re-adjusted our 2020 baseline to account for
updates to our accounting methodology.
The growth of our business often involves the acquisition of real estate assets from third parties. In furtherance of our commitment to
environmental sustainability, we routinely engage nationally recognized and certified environmental engineers to perform Phase I Environmental Site
Assessments as part of our acquisition process and require future tenants to ensure compliance with all environmental laws, including any necessary
testing, remediation and/or monitoring.
Recognizing that sustainability is a journey, we are committed to continuous improvement and will endeavor to engage and communicate with our
key stakeholders regarding our ESG stewardship. Further, we are committed to developing initiatives to address and mitigate those environmental risks
within our control and supporting our tenants to do the same.
Human Capital Management
As of December 31, 2022, we had 17 full-time employees. Our employees are a valued asset and integral to the success of the Company. We strive
to prioritize our employees’ education, development, growth, and well-being. We are passionate about developing our talent. We provide tuition
reimbursement, professional development reimbursement, and performance appraisals. We are committed to continuing to develop strategies focused on
employee growth, development and well-being.
Senior management holds employee meetings and social events at a regular cadence to create an open forum for learning and to foster feedback.
In 2021, we initiated a program in which every employee receives an annual grant of GLPI restricted stock that vests over a three-year period.
This program was proposed and instituted by our Chairman and CEO as a way to attract and maintain talent across all levels of the organization and to
ensure that every employee has a stake in the Company’s continued growth and success.
We offer competitive and balanced benefits, including a flexible work policy designed to ensure a healthy work-life balance. Our array of other
well-being and benefits packages includes a 401(k) plan with employer match, familial leave, a health and fitness facility at the corporate campus and an
employee assistance plan (EAP), among other non-salary benefits. The Company also offers paid time off for volunteering and community involvement.
Our view of human capital management extends beyond our employees to our vendors and other third parties with whom we do business. In 2021,
we adopted a Vendor Code of Conduct designed to ensure that we engage individuals and businesses that are committed to the health and well-being of
their employees as well.
Diversity, Equity, and Inclusion (DEI)
GLPI is focused on cultivating a diverse and inclusive culture where our employees can freely bring diverse perspectives and varied experiences
to the workplace. We value diverse representation, backgrounds and viewpoints and believe that it serves to strengthen our business proposition for the
long-term horizon.
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Within our hiring and recruitment processes, we adhere to equal employment policies, and we are committed to prioritizing diversity in any
expansion of our Board of Directors or the filling of any vacancy. We abide by our Inclusive Workplace Policy and require all employees, including our
Board of Directors, to complete an annual training on diversity and inclusion, alongside other trainings for various GLPI policies, including our Code of
Business Conduct.
As of December 31, 2022, 53% of our employees identify as female. In addition, 25% of the Board of Directors are comprised of directors that
identify as female and/or members that identify as racially or ethnically diverse.
Tenant Engagement
Since the formalization of our Tenant Partnership Program in 2021, we have continued to engage with our tenants to address and discuss ESG
related matters such as environmental data collection strategies and community engagement opportunities. We continue to foster these relationships and
explore community engagement partnership opportunities. We believe by aligning our goals and aspirations with those of our tenants, we will make a
greater net impact in the communities with which own real estate and conduct business.
Community Engagement
We take an active role in supporting our communities by partnering with local and national organizations to administer charitable contribution,
provide community service, and organize the donation of goods to assist local families in need. Our employees volunteer at food banks and participate in
other charitable events. A FY2022 highlight was the inauguration of our Annual Day of Service to support the Berks County branch of Helping Harvest in
fighting hunger. 94% of our employees participated in this initiative focused on helping our local community.
Available Information
For more information about us, visit our website at www.glpropinc.com. The contents of our website are not part of this Annual Report on Form
10-K. Our electronic filings with the SEC (including all annual reports on Form 10-K and Form 10-K/A, quarterly reports on Form 10-Q and Form 10-Q/A,
and current reports on Form 8-K, and any amendments to these reports), including the exhibits, are available free of charge through our website as soon as
reasonably practicable after we electronically file them with or furnish them to the SEC.
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ITEM 1A. RISK FACTORS
Risk Factors Relating to Our Business
The majority of our revenues are dependent on PENN and its subsidiaries until we further diversify our portfolio. Any event that has a material adverse
effect on PENN’s business, financial position or results of operations may have a material adverse effect on our business, financial position or results
of operations.
The majority of our revenue is based on the revenue derived under our master leases with subsidiaries of PENN. Because these master leases are
triple-net leases, we depend on PENN to operate the properties that we own in a manner that generates revenues sufficient to allow PENN to meet its
obligations to us, including payment of rent and all insurance, taxes, utilities and maintenance and repair expenses, and to indemnify, defend and hold us
harmless from and against various claims, litigation and liabilities arising in connection with its business. There can be no assurance that PENN will have
sufficient assets, income or access to financing to enable it to satisfy its payment obligations to us under the master leases. The ability of PENN to fulfill its
obligations depends, in part, upon the overall profitability of its gaming operations and, other than limited contractual protections afforded to us as a
landlord, we have no control over PENN or its operations. The inability or unwillingness of PENN to meet its subsidiaries’ rent obligations and other
obligations under the master leases may materially and adversely affect our business, financial position or results of operations, including our ability to pay
dividends to our shareholders.
Due to our dependence on rental payments from PENN as a significant source of revenue, we may be limited in our ability to enforce our rights
under the master leases. Failure by PENN to comply with the terms of its master leases or to comply with the gaming regulations to which the leased
properties are subject could require us to find another lessee for such leased property. In such event, we may be unable to locate a suitable lessee at similar
rental rates or at all, which would have the effect of reducing our rental revenues. Likewise, our financial position may be materially weakened if PENN
failed to renew or extend any master lease as such lease expires and we are unable to lease or re-lease our properties on economically favorable terms.
Any event that has a material adverse effect on PENN’s business, financial position or results of operations could have a material adverse effect on
our business, financial position or results of operations. In addition, continued consolidation in the gaming industry would increase our dependence on our
existing tenants and could make it increasingly difficult for us to find alternative tenants for our properties.
The bankruptcy or insolvency of any of our tenants could result in termination of such tenant's lease and material losses to us.
The bankruptcy or insolvency of any of our tenants could diminish the income we receive from that tenant’s lease or leases. If a tenant becomes
bankrupt or insolvent, federal law may prohibit us from evicting such tenant based solely upon such bankruptcy or insolvency. In addition, a bankrupt or
insolvent tenant may be authorized to reject and terminate its lease or leases with us. Any claims against such bankrupt tenant for unpaid future rent would
be subject to statutory limitations that would likely result in our receipt of rental revenues that are substantially less than the contractually specified rent we
are owed under the lease or leases. In addition, any claim we have for unpaid past rent, if any, may not be paid in full. We may also be unable to re-lease a
terminated or rejected space or to re-lease it on comparable or more favorable terms. Moreover, tenants who are considering filing for bankruptcy
protection may request amendments of their master leases to remove certain of the properties they lease from us under such master leases. We cannot
guarantee that we will be able to sell or re-lease such properties or that lease termination fees, if any, received in exchange for such releases will be
sufficient to make up for the rental revenues lost as a result of such lease amendments.
Our pursuit of investments in, and acquisitions or development of, additional properties may be unsuccessful or fail to meet our expectations.
We operate in a highly competitive industry and face competition from other REITs (including other gaming-focused REITs), investment
companies, private equity and hedge fund investors, sovereign funds, lenders, gaming companies (including gaming companies considering REIT
structures) and other investors, some of whom are significantly larger and have greater resources and lower costs of capital. Increased competition may
make it more challenging to identify and successfully capitalize on acquisition opportunities that meet our investment objectives. If we cannot identify and
purchase a sufficient number of investment properties at favorable prices or if we are unable to finance acquisitions on commercially favorable terms, our
business, financial position or results of operations could be materially adversely affected. Additionally, the fact that we must distribute 90% of our net
taxable income in order to maintain our qualification as a REIT may limit our ability to rely upon rental payments from our leased properties or
subsequently acquired properties in order to finance acquisitions. As a result, if debt or equity financing is not available on acceptable terms, further
acquisitions might be limited or curtailed and completing
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proposed acquisitions may be adversely impacted. Furthermore, fluctuations in the price of our common stock may impact our ability to finance additional
acquisitions through the issuance of common stock and/or cause significant dilution.
Investments in and acquisitions of gaming properties and other properties we might seek to acquire entail risks associated with real estate
investments, including that the investment's performance will fail to meet expectations or that the tenant, operator or manager will underperform. Real
estate development projects present other risks, including construction delays or cost overruns that increase expenses, the inability to obtain required
zoning, occupancy and other governmental approvals and permits on a timely basis, and the incurrence of significant development costs prior to completion
of the project.
We are dependent on the gaming industry and may be susceptible to the risks associated with it, which could materially adversely affect our business,
financial position or results of operations.
As the landlord of gaming facilities, we are impacted by the risks associated with the gaming industry. Therefore, our success is to some degree
dependent on the gaming industry, which could be adversely affected by economic conditions in general, changes in consumer trends and preferences and
other factors over which our tenants have no control. As we are subject to risks inherent in substantial investments in a single industry, a decrease in the
gaming business may have a greater adverse effect on our revenues than if we owned a more diversified real estate portfolio, particularly because a
component of the rent under our leases is based, over time, on the revenue of the gaming facilities operated by our tenants. Decreases in discretionary
consumer spending brought about by weakened general economic conditions such as, but not limited to, high unemployment levels, higher income taxes,
low levels of consumer confidence, weakness in the housing market, cultural and demographic changes, and increased stock market volatility may
negatively impact our revenues and operating cash flow.
The gaming industry is characterized by an increasing number of gaming facilities with an increasingly high degree of competition among a large
number of participants, including riverboat casinos, dockside casinos, land-based casinos, video lottery, sweepstakes and poker machines not located in
casinos, Native American gaming and other forms of gaming in the U.S. Furthermore, competition from alternative wagering products, such as internet
lotteries, sweepstakes, social gaming products, daily fantasy sports and other internet wagering gaming services, online sports wagering or games of skill,
which allow their customers a wagering alternative to the casino-style, such as remote home gaming or in non-casino settings, could divert customers from
our properties and thus adversely affect our tenants and, indirectly, our business. Present state or federal laws that restrict the forms of gaming authorized or
the number of competitors that offer gaming in the applicable jurisdiction are subject to change and may increase the competition affecting the business of
our tenants and, indirectly, our business. Currently, there are proposals that would legalize several forms of internet gaming and other alternative wagering
products in a number of states. Further, several states have already approved intrastate internet gaming and sports betting. Expansion of internet gaming and
sports betting in other jurisdictions may compete with our traditional operations, which could have an adverse impact on our business and result of
operations.
The operations of our tenants in our leased facilities are subject to disruptions or reduced patronage as a result of severe weather conditions,
changing climate conditions, natural disasters and other casualty events, terrorist attacks or other acts of violence. Because many of our facilities are
located on or adjacent to bodies of water, they are subject to risks in addition to those associated with land-based facilities, including loss of service due to
casualty, forces of nature, mechanical failure, extended or extraordinary maintenance, flood, hurricane or other severe weather and climate conditions. A
component of the rent under our leases is based, over time, on the revenues of the gaming facilities operated by PENN and Boyd on our properties;
consequently, a casualty that leads to the loss of use of a casino facility subject to our leases for an extended period may negatively impact our revenues.
We face extensive regulation from gaming and other regulatory authorities.
The ownership, operation, and management of gaming and racing facilities are subject to pervasive regulation. These regulations impact both
GLPI and the operations of our gaming tenants. Many gaming and racing regulatory agencies in the jurisdictions in which our tenants operate require
GLPI, its affiliates and certain officers and directors to maintain licenses as a key business entity, principal affiliate, business entity qualifier, operator,
supplier or key person because of GLPI's status as landlord. For GLPI to maintain such licenses in good standing, certain of GLPI's officers and directors
are also required to maintain licenses or a finding of suitability.
Many jurisdictions also require any person who acquires beneficial ownership of more than a certain percentage of securities of a company
licensed in such jurisdiction, typically 5%, to report the acquisition to gaming authorities, and gaming authorities may require such holders to apply for
qualification or a finding of suitability, subject to limited exceptions for "institutional investors" that hold a company's voting securities for passive
investment purposes only. Some jurisdictions may also limit the number of gaming licenses or gaming facilities in which a person may hold an ownership
or a controlling interest. Subject to certain regulations and administrative proceeding requirements, the gaming regulators have the authority to deny any
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application or limit, condition, restrict, revoke or suspend any license, registration, finding of suitability or approval, or fine any person licensed, registered
or found suitable or approved, for any cause deemed reasonable by the gaming authorities.
Additionally, substantially all material loans, significant acquisitions, leases, sales of securities and similar financing transactions by us and our
subsidiaries must be reported to and in some cases approved by gaming authorities in advance of the transaction. Neither we nor any of our subsidiaries
may make a public offering of securities without the prior approval of certain gaming authorities. Changes in control through merger, consolidation, stock
or asset acquisitions, management or consulting agreements, or otherwise are subject to receipt of prior approval of certain gaming authorities. Entities
seeking to acquire control of GLPI or one of its subsidiaries must satisfy gaming authorities with respect to a variety of stringent licensing standards prior
to assuming control.
Required regulatory approvals can delay or prohibit transfers of our gaming properties, which could result in periods in which we are unable to receive
rent for such properties.
The tenants of our gaming properties are operators of gaming facilities and must be licensed under applicable state law. Prior to the transfer of
gaming facilities, including a controlling interest, the new owner or operator generally must become licensed under applicable state law. In the event that
any current lease or any future lease agreement we enter into is terminated or expires and a new tenant is found, any delays in the new tenant receiving
regulatory approvals from the applicable state government agencies, or the inability to receive such approvals, may prolong the period during which we are
unable to collect the applicable rent.
Our pursuit of strategic acquisitions unrelated to the gaming industry may be unsuccessful or fail to meet our expectations.
We may pursue strategic acquisitions of real property assets unrelated to the gaming industry, including acquisitions that may be complementary to
our existing gaming properties. Our management does not possess the same level of expertise with the dynamics and market conditions applicable to non-
gaming assets, which could adversely affect the results of our expansion into other asset classes. In addition, we may be unable to achieve our desired
return on our investments in new or adjacent asset classes.
COVID-19 has had, and may continue to have, a significant impact on our tenants' financial conditions and operations.
In December 2019, a new strain of novel coronavirus, COVID-19, was reported in China and shortly thereafter spread across the globe. This
global pandemic outbreak led to unprecedented responses by federal, state and local officials. Certain responses included mandates from authorities
requiring temporary closures of or imposed limitations on the operations of many businesses in the attempt to mitigate the spread of infections.
Unemployment levels rose sharply and economic activity levels declined dramatically as a result. The United States government implemented various
significant aid packages to support the economy and credit markets to combat these declines.
Our TRS Properties and our tenants' casino operations were forced to close temporarily in mid-March of 2020 through various dates into May and
June 2020. Even though most of our properties recommenced operations to encouraging results, including certain locations where earnings were higher
than the corresponding period prior to COVID-19, it is uncertain whether these strong results will continue in future periods.
The ultimate impact of COVID-19 and its variants on us is highly uncertain and subject to change and will depend on future developments, which
cannot be accurately predicted, including the continued emergence of new strains of COVID-19, the effectiveness of vaccines and therapeutics over time
against current and future strains of COVID-19, additional or modified government actions, new information that will emerge concerning the severity and
impact of COVID-19 and the actions taken to contain COVID-19 or address its impact in the short and long term, among others.
Our charter restricts the ownership and transfer of our outstanding stock, which may have the effect of delaying, deferring or preventing a transaction
or change of control of our company.
In order for us to qualify to be taxed as a REIT, not more than 50% in value of our outstanding shares of stock may be owned, actually or
constructively, by five or fewer individuals at any time during the last half of each taxable year after the first year for which GLPI elected to qualify to be
taxed as a REIT (2014). Additionally, at least 100 persons must beneficially own GLPI stock during at least 335 days of a taxable year (other than the first
taxable year for which GLPI elected to be taxed as a REIT). GLPI's charter, with certain exceptions, authorizes the Board of Directors to take such actions
as are necessary and desirable to preserve GLPI's qualification as a REIT. GLPI's charter also provides that, subject to certain exceptions approved by the
Board of Directors, no person may beneficially or constructively own more than 7% in value or in number, whichever is more restrictive, of GLPI's
outstanding shares of all classes and series of stock. The constructive ownership rules are complex
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and may cause shares of stock owned directly or constructively by a group of related individuals or entities to be constructively owned by one individual or
entity. These ownership limits could delay or prevent a transaction or a change in control of GLPI that might involve a premium price for shares of GLPI
stock or otherwise be in the best interests of GLPI shareholders. The acquisition of less than 7% of our outstanding stock by an individual or entity could
cause that individual or entity to own beneficially or constructively in excess of 7% in value of our outstanding stock, and thus violate our charter's
ownership limit. Our charter prohibits any person from owning shares of our stock that would result in our being "closely held" under Section 856(h) of the
Code. Any attempt to own or transfer shares of our stock in violation of these restrictions may result in the transfer being automatically void. GLPI's charter
also provides that shares of GLPI's capital stock acquired or held in excess of the ownership limit will be transferred to a trust for the benefit of a
designated charitable beneficiary, and that any person who acquires shares of GLPI's capital stock in violation of the ownership limit will not be entitled to
any dividends on the shares or be entitled to vote the shares or receive any proceeds from the subsequent sale of the shares in excess of the lesser of the
market price on the day the shares were transferred to the trust or the amount realized from the sale. GLPI or its designee will have the right to purchase the
shares from the trustee at this calculated price as well. A transfer of shares of GLPI's capital stock in violation of the limit may be void under certain
circumstances. GLPI's 7% ownership limitation may have the effect of delaying, deferring or preventing a change in control of GLPI, including an
extraordinary transaction (such as a merger, tender offer or sale of all or substantially all of our assets) that might provide a premium price for GLPI's
shareholders. To assist GLPI in complying with applicable gaming laws, our charter also provides that capital stock of GLPI that is owned or controlled by
an unsuitable person or an affiliate of an unsuitable person will be transferred to a trust for the benefit of a designated charitable beneficiary, and that any
such unsuitable person or affiliate will not be entitled to any dividends on the shares or be entitled to vote the shares or receive any proceeds from the
subsequent sale of the shares in excess of the lesser of the price paid by the unsuitable person or affiliate for the shares or the amount realized from the sale,
in each case less a discount in a percentage (up to 100%) to be determined by our Board of Directors in its sole and absolute discretion. The shares shall
additionally be redeemable by GLPI, out of funds legally available for that redemption, to the extent required by the gaming authorities making the
determination of unsuitability or to the extent determined to be necessary or advisable by our Board of Directors, at a redemption price equal to the lesser
of (i) the market price on the date of the redemption notice, (ii) the market price on the redemption date, or (iii) the actual amount paid for the shares by the
owner thereof, in each case less a discount in a percentage (up to 100%) to be determined by our Board of Directors in its sole and absolute discretion.
Pennsylvania law and provisions in our charter and bylaws may delay or prevent takeover attempts by third parties and therefore inhibit our
shareholders from realizing a premium on their stock.
Our charter and bylaws, in addition to Pennsylvania law, contain provisions that are intended to deter coercive takeover practices and inadequate
takeover bids and to encourage prospective acquirers to negotiate with our Board of Directors rather than to attempt a hostile takeover. Our charter and
bylaws, among other things (i) permit the Board of Directors, without further action of the shareholders, to issue and fix the terms of preferred stock, which
may have rights senior to those of the common stock; (ii) establish certain advance notice procedures for shareholder proposals, and require all director
candidates to be recommended by the nominating and corporate governance committee of the Board of Directors following the affirmative determination
by the nominating and corporate governance committee that such nominee is likely to meet the applicable suitability requirements of any federal, state or
local regulatory body having jurisdiction over us; (iii) provide that a director may only be removed by shareholders for cause and upon the vote of 75% of
the shares entitled to vote; (iv) do not permit direct nomination by shareholders of nominees for election to the Board of Directors, but instead permit
shareholders to recommend potential nominees to our nominating and corporate governance committee; (v) require shareholders to have beneficially
owned at least 1% of our outstanding common stock in order to recommend a person for nomination for election to the Board of Directors, or to present a
shareholder proposal, for action at a shareholders' meeting; and (vi) provide for super majority approval requirements for amending or repealing certain
provisions in our charter and in order to approve an amendment or repeal of any provision of our bylaws that has not been proposed by our Board of
Directors.
In addition, specific anti-takeover provisions in Pennsylvania law could make it more difficult for a third party to attempt a hostile takeover. These
provisions require (i) approval of certain transactions by a majority of the voting stock other than that held by the potential acquirer; (ii) the acquisition at
"fair value" of all the outstanding shares not held by an acquirer of 20% or more; (iii) a five-year moratorium on certain "business combination"
transactions with an "interested shareholder;" (iv) the loss by interested shareholders of their voting rights over "control shares;" (v) the disgorgement of
profits realized by an interested shareholder from certain dispositions of our shares; and (vi) severance payments for certain employees and prohibiting
termination of certain labor contracts.
We believe these provisions will protect our shareholders from coercive or otherwise unfair takeover tactics by requiring potential acquirers to
negotiate with our Board of Directors and by providing our Board of Directors with more time to assess any acquisition proposal. These provisions are not
intended to make GLPI immune from takeovers or to prevent a transaction from occurring. However, these provisions will apply even if the offer may be
considered beneficial by some
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shareholders and could delay or prevent an acquisition that our Board of Directors determines is not in the best interests of GLPI. These provisions may
also prevent or discourage attempts to remove and replace incumbent directors.
We may experience uninsured or under insured losses, which could result in a significant loss of the capital we have invested in a property, decrease
anticipated future revenues or cause us to incur unanticipated expense.
While our leases require, and new lease agreements are expected to require, that comprehensive insurance and hazard insurance be maintained by
the tenants, a tenant's failure to comply could lead to an uninsured or under insured loss and there can be no assurance that we will be able to recover such
uninsured or under insured amounts from such tenant. Further, there are certain types of losses, generally of a catastrophic nature, such as earthquakes,
hurricanes and floods, that may be uninsurable or not economically insurable. Insurance coverage may not be sufficient to pay the full current market value
or current replacement cost of a loss. Inflation, changes in building codes and ordinances, environmental considerations, and other factors also might make
it infeasible to use insurance proceeds to replace the property after such property has been damaged or destroyed. Under such circumstances, the insurance
proceeds received might not be adequate to restore the economic position with respect to such property.
If we or one of our tenants experience a loss that is uninsured, or that exceeds our or our tenant's policy coverage limits, we could lose the capital
invested in the damaged properties as well as the anticipated future cash flows from those properties. In addition, if the damaged properties were subject to
recourse indebtedness, we could continue to be liable for the indebtedness even if these properties were irreparably damaged.
In addition, even if damage to our properties is covered by insurance, a disruption of our or our tenant's business caused by a casualty event may
result in the loss of business or tenants. The business interruption insurance our tenant's carry may not fully compensate us for the loss of business of our
tenants due to an interruption caused by a casualty event.
A disruption in the financial markets may make it more difficult to evaluate the stability, net assets and capitalization of insurance companies and
any insurer's ability to meet its claim payment obligations. A failure of an insurance company to make payments to us or our tenant's upon an event of loss
covered by an insurance policy could adversely affect our business, financial condition and results of operations.
The market price of our common stock may be volatile, and holders of our common stock could lose a significant portion of their investment if the
market price of our common stock declines.
The market price of our common stock may be volatile, and shareholders may not be able to resell their shares of our common stock at or above
the price at which they acquired the common stock due to fluctuations in its market price, including changes in price caused by factors unrelated to our
performance or prospects.
Specific factors that may have a significant effect on the market price for our common stock include, among others, the following:
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changes in stock market analyst recommendations or earnings estimates regarding our common stock or other comparable REITs;
actual or anticipated fluctuations in our revenue stream or future prospects;
strategic actions taken by us or our competitors, such as acquisitions;
our failure to close pending acquisitions;
our failure to achieve the perceived benefits of our acquisitions, including financial results, as rapidly as or to the extent anticipated by
financial or industry analysts;
new laws or regulations or new interpretations of existing laws or regulations applicable to our business and operations or the gaming
industry;
changes in tax or accounting standards, policies, guidance, interpretations or principles;
changes in the interest rate environment and/or the impact of rising inflation;
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•
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adverse conditions in the financial markets or general U.S. or international economic conditions, including those resulting from war,
incidents of terrorism and responses to such events; and
sales of our common stock by members of our management team or other significant shareholders.
Environmental compliance costs and liabilities associated with real estate properties owned by us may materially impair the value of those investments.
As an owner of real property, we are subject to various federal, state and local environmental and health and safety laws and regulations. Although
we do not operate or manage most of our properties, we may be held primarily or jointly and severally liable for costs relating to the investigation and
clean-up of any property from which there has been a release or threatened release of a regulated material as well as other affected properties, regardless of
whether we knew of or caused the release.
In addition to these costs, which are typically not limited by law or regulation and could exceed the property's value, we could be liable for certain
other costs, including governmental fines and injuries to persons, property or natural resources. Further, some environmental laws create a lien on the
contaminated site in favor of the government for damages and the costs the government incurs in connection with such contamination.
Although we require our operators and tenants to undertake to indemnify us for certain environmental liabilities, including environmental
liabilities they cause, the amount of such liabilities could exceed the financial ability of the tenant or operator to indemnify us. The presence of
contamination or the failure to remediate contamination may adversely affect our ability to sell or lease the real estate or to borrow using the real estate as
collateral.
Changes to U.S. federal income tax laws could materially and adversely affect us and our shareholders.
The Tax Cuts and Jobs Act made significant changes to the federal income taxation of individuals and corporations under the Code, generally
effective for taxable years beginning after December 31, 2017. In addition to reducing corporate and individual income tax rates, the Tax Cuts and Jobs Act
eliminates or restricts various deductions that, along with other provisions, may change the way that we calculate our REIT taxable income and our TRS’s
taxable income. Significant provisions of the Tax Cuts and Jobs Act that investors should be aware of include provisions that: (i) lower the corporate
income tax rate to 21%, (ii) provide noncorporate taxpayers with a deduction of up to 20% of certain income earned through partnerships and REITs, (iii)
limit the net operating loss deduction to 80% of taxable income, where taxable income is determined without regard to the net operating loss deduction
itself, generally eliminates net operating loss carry backs and allow unused net operating losses to be carried forward indefinitely, (iv) expand the ability of
businesses to deduct the cost of certain property investments in the year in which the property is purchased, (v) generally lower tax rates for individuals and
other noncorporate taxpayers, while limiting deductions such as miscellaneous itemized deductions and state and local tax deductions, and (vi) limit the
deduction for net interest expense incurred by a business to 30% of the "adjusted taxable income" of the taxpayer, but do not apply to certain small-business
taxpayers or electing real property trades or businesses, including REITs. The effect of these, and the many other, changes made is highly uncertain, both in
terms of their direct effect on the taxation of holders of our common stock and their indirect effect on the value of our assets or market conditions generally.
In addition, future changes in tax laws, including the proposed tax agenda presented by the Biden administration, or tax rulings, could affect our effective
tax rate, the tax rate of shareholders of our stock, and overall benefit of maintaining our status as a REIT. For example, the reduction in the corporate
income tax rate resulting from the Tax Cuts and Jobs Act could be reduced or rescinded, individual tax rates may increase, and the §199A deduction for
REIT dividends could be phased out.
We face risks associated with security breaches through cyber-attacks, cyber intrusions or otherwise, as well as other significant disruptions of our
information technology (IT) networks and related systems.
We face risks associated with security breaches, whether through cyber-attacks or cyber intrusions over the internet, malware, computer viruses,
attachments to e-mails, persons inside our organization or persons with access to systems inside our organization, and other significant disruptions of our
IT networks and related systems. The risk of a security breach or disruption, particularly through cyber-attack or cyber intrusion, including by computer
hackers, foreign governments and cyber terrorists, has generally increased as the number, intensity and sophistication of attempted attacks and intrusions
from around the world have increased. Our IT networks and related systems are essential to the operation of our business and our ability to perform day-to-
day operations. Although we make efforts to maintain the security and integrity of these types of IT networks and related systems, and we have
implemented various measures to manage the risk of a security breach or disruption, there can be no assurance that our security efforts and measures will
be effective or that attempted security breaches or disruptions would not be successful or damaging. A security breach or other significant disruption
involving our IT networks and related systems could disrupt the proper functioning of our networks and systems; result in misstated financial reports,
violations of loan
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covenants and/or missed reporting deadlines; result in our inability to monitor our compliance with the rules and regulations regarding our qualification as
a REIT; result in the unauthorized access to, and destruction, loss, theft, misappropriation or release of proprietary, confidential, sensitive or otherwise
valuable information of ours or others, which others could use to compete against us or for disruptive, destructive or otherwise harmful purposes and
outcomes; require significant management attention and resources to remedy any damages that result; subject us to claims for breach of contract, damages,
credits, penalties or termination of certain agreements; or damage our reputation among our tenants and investors generally.
If our tenants fail to detect fraud or theft, including by our tenants’ users and employees, our tenants, and, therefore, our reputation may
suffer which could harm our tenants, and, therefore, our brand and reputation and negatively impact our tenants, and therefore, our business,
financial condition and results of operations and can subject us to investigations and litigation.
Our tenants may incur losses from various types of financial fraud, including use of stolen or fraudulent credit card data, claims of unauthorized
payments by a user and attempted payments by users with insufficient funds. Bad actors use increasingly sophisticated methods to engage in illegal
activities involving personal information, such as unauthorized use of another person’s identity, account information or payment information and
unauthorized acquisition or use of credit or debit card details, bank account information and mobile phone numbers and accounts. Under current credit card
practices, our tenants may be liable for use of funds on their products with fraudulent credit card data, even if the associated financial institution approved
the credit card transaction. Acts of fraud may involve various tactics, including collusion. Successful exploitation of our tenants' systems could have
negative effects on their product offerings, services and user experience and could harm their reputation. Failure to discover such acts or schemes in a
timely manner could result in harm to their operations. In addition, negative publicity related to such schemes could have an adverse effect on their
reputation, potentially causing a material adverse effect on our business, financial condition, results of operations and prospects. We cannot guarantee that
any of our tenants’ measures to detect and reduce the occurrence of fraudulent or other malicious activity on our offerings will be effective or will scale
efficiently with our tenants business. Our tenants’ failure to adequately detect or prevent fraudulent transactions could harm our tenants’, and, therefore, our
reputation or brand, result in litigation or regulatory action and lead to expenses that could adversely affect our tenants, and, therefore, our business,
financial condition and results of operations.
Risk Factors Relating to our Status as a REIT
If we do not qualify to be taxed as a REIT, or fail to remain qualified as a REIT, we will be subject to U.S. federal income tax as a regular corporation
and could face a substantial tax liability, which may reduce the amount of cash available for distribution to our shareholders.
We elected on our 2014 U.S. federal income tax return to be treated as a REIT and intend to continue to be organized and to operate in a manner
that will permit us to qualify as a REIT. We currently operate, and intend to continue to operate, in a manner that will allow us to continue to qualify to be
taxed as a REIT for U.S. federal income tax purposes. We received an opinion from our special tax advisors, Wachtell, Lipton, Rosen & Katz and
KPMG LLP (collectively the "Special Tax Advisors"), with respect to our qualification as a REIT in connection with the Spin-Off. Opinions of advisors are
not binding on the IRS or any court. The opinions of the Special Tax Advisors represent only the view of the Special Tax Advisors based on their review
and analysis of existing law and on certain representations as to factual matters and covenants made by us, including representations relating to the values
of our assets and the sources of our income. The opinions are expressed as of the date issued. The Special Tax Advisors have no obligation to advise us or
the holders of our common stock of any subsequent change in the matters stated, represented or assumed or of any subsequent change in applicable law.
Furthermore, both the validity of the opinions of Special Tax Advisors and our qualification as a REIT will depend on our satisfaction of certain asset,
income, organizational, distribution, shareholder ownership and other requirements on a continuing basis, the results of which are not monitored by the
Special Tax Advisors. Our ability to satisfy the asset tests depends upon our analysis of the characterization and fair market values of our assets, some of
which are not susceptible to a precise determination, and for which we will not obtain independent appraisals.
PENN has received a private letter ruling from the IRS with respect to certain issues relevant to our qualification as a REIT. In general, the ruling
provides, subject to the terms and conditions contained therein, that (1) certain of the assets to be held by us after the Spin-Off and (2) the methodology for
calculating a certain portion of rent received by us pursuant to the PENN Master Lease will not adversely affect our qualification as a REIT. No assurance
can be given that the IRS will not challenge our qualification as a REIT on the basis of other issues or facts outside the scope of the ruling.
If we were to fail to qualify to be taxed as a REIT in any taxable year, we would be subject to U.S. federal income tax, including any applicable
alternative minimum tax, on our taxable income at regular corporate rates, and dividends paid to our shareholders would not be deductible by us in
computing our taxable income. Any resulting corporate liability could be substantial and would reduce the amount of cash available for distribution to our
shareholders, which in turn could have an
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adverse impact on the value of our common stock. Unless we were entitled to relief under certain Code provisions, we also would be disqualified from re-
electing to be taxed as a REIT for the four taxable years following the year in which we failed to qualify to be taxed as a REIT.
Qualifying as a REIT involves highly technical and complex provisions of the Code and violations of these provisions could jeopardize our REIT
qualifications.
Qualification as a REIT involves the application of highly technical and complex Code provisions for which only limited judicial and
administrative authorities exist. Even a technical or inadvertent violation could jeopardize our REIT qualification. Our qualification as a REIT depends on
our satisfaction of certain asset, income, organizational, distribution, shareholder ownership and other requirements on a continuing basis. In addition, our
ability to satisfy the requirements to qualify to be taxed as a REIT may depend in part on the actions of third parties over which we have no control or only
limited influence.
We could fail to qualify to be taxed as a REIT if income we receive from our tenants, or their subsidiaries, is not treated as qualifying income.
Under applicable provisions of the Code, we will not be treated as a REIT unless we satisfy various requirements, including requirements relating
to the sources of our gross income. Rents received or accrued by us from our tenants or their subsidiaries, will not be treated as qualifying rent for purposes
of these requirements if our leases are not respected as true leases for U.S. federal income tax purposes and are instead treated as service contracts, joint
ventures or some other type of arrangements. If any leases are not respected as a true lease for U.S. federal income tax purposes, we may fail to qualify to
be taxed as a REIT. Furthermore, our qualification as a REIT will depend on our satisfaction of certain asset, income, organizational, distribution,
shareholder ownership and other requirements on a continuing basis. Our ability to satisfy the asset tests depends upon our analysis of the characterization
and fair market values of our assets, some of which are not susceptible to a precise determination, and for which we will not obtain independent appraisals.
In addition, subject to certain exceptions, rents received or accrued by us from our tenants will not be treated as qualifying rent for purposes of
these requirements if we or an actual or constructive owner of 10% or more of our stock actually or constructively owns 10% or more of the total combined
voting power of all classes of such respective tenant's stock entitled to vote or 10% or more of the total value of such respective tenant's stock. Our charter
provides for restrictions on ownership and transfer of our shares of stock, including restrictions on such ownership or transfer that would cause the rents
received or accrued by us from our tenants, to be treated as non-qualifying rent for purposes of the REIT gross income requirements. Nevertheless, there
can be no assurance that such restrictions will be effective in ensuring that rents received or accrued by us from our tenants or their subsidiaries will not be
treated as qualifying rent for purposes of REIT qualification requirements.
Dividends payable by REITs do not qualify for the reduced tax rates available for some dividends.
The maximum U.S. federal income tax rate applicable to income from "qualified dividends" payable by U.S. corporations to U.S. shareholders
that are individuals, trusts and estates is currently 20%. Ordinary dividends payable by REITs, however, generally are not eligible for the reduced rates.
However, for taxable years that begin after December 31, 2017, and before January 1, 2026: (i) the U.S. federal income tax brackets generally applicable to
ordinary income of individuals, trusts and estates have been modified (with the rates generally reduced) and (ii) shareholders that are individuals, trusts or
estates are generally entitled to a deduction equal to 20% of the aggregate amount of ordinary income dividends received from a REIT (not including
dividends that are eligible for the reduced rates applicable to "qualified dividend income" or treated as capital gain dividends), subject to certain limitations.
The more favorable rates applicable to regular corporate qualified dividends could cause investors who are individuals, trusts or estates to perceive
investments in REITs to be relatively less attractive than investments in the stocks of non-REIT corporations that pay dividends, which could adversely
affect the value of the stock of REITs, including our stock, even taking into account the lower 37% maximum rate for ordinary income and the 20%
deduction for ordinary REIT dividends received in taxable years beginning after December 31, 2017 and before January 1, 2026.
REIT distribution requirements could adversely affect our ability to execute our business plan.
We generally must distribute annually at least 90% of our REIT taxable income, determined without regard to the dividends paid deduction and
excluding any net capital gains, in order to qualify to be taxed as a REIT (assuming that certain other requirements are also satisfied) so that U.S. federal
corporate income tax does not apply to earnings that we distribute. To the extent that we satisfy this distribution requirement and qualify for taxation as a
REIT but distribute less than 100% of our REIT taxable income, determined without regard to the dividends paid deduction and including any net capital
gains, we will be subject to U.S. federal corporate income tax on our undistributed net taxable income. In addition, we will be subject to a 4%
nondeductible excise tax if the actual amount that we distribute to our shareholders in a calendar year is less than a minimum
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amount specified under U.S. federal income tax laws. We intend to make distributions to our shareholders to comply with the REIT requirements of the
Code and to avoid the imposition of corporate income tax or the 4% excise tax.
From time to time, we may generate taxable income greater than our cash flow as a result of differences in timing between the recognition of
taxable income and the actual receipt of cash or the effect of nondeductible capital expenditures, the creation of reserves or required debt or amortization
payments. If we do not have other funds available in these situations, we could be required to borrow funds on unfavorable terms, sell assets at
disadvantageous prices, distribute amounts that would otherwise be invested in future acquisitions, or pay dividends in the form of taxable in-kind
distributions of property, including potentially, shares of our common stock, to make distributions sufficient to enable us to pay out enough of our taxable
income to satisfy the REIT distribution requirement and to avoid corporate income tax and the 4% excise tax in a particular year. These alternatives could
increase our costs or reduce our equity. Thus, compliance with the REIT requirements may hinder our ability to grow, which could adversely affect the
value of our stock. Restrictions on our indebtedness, including restrictions on our ability to incur additional indebtedness or make certain distributions,
could preclude us from meeting the 90% distribution requirement. Decreases in funds from operations due to unfinanced expenditures for acquisitions of
properties or increases in the number of shares of our common stock outstanding without commensurate increases in funds from operations each would
adversely affect our ability to maintain distributions to our shareholders. Moreover, the failure of PENN to make rental payments under the PENN Master
Lease, would materially impair our ability to make distributions. Consequently, there can be no assurance that we will be able to make distributions at the
anticipated distribution rate or any other rate.
Even if we remain qualified as a REIT, we may face other tax liabilities that reduce our cash flow.
Even if we remain qualified for taxation as a REIT, we may be subject to certain U.S. federal, state, and local taxes on our income and assets,
including taxes on any undistributed income and state or local income, property and transfer taxes. For example, we may hold certain of our assets and
conduct related activities through TRS subsidiary corporations that are subject to federal, state, and local corporate-level income taxes as regular C
corporations as well as state and local gaming taxes. In addition, we may incur a 100% excise tax on transactions with a TRS if they are not conducted on
an arm's-length basis. Any of these taxes would decrease cash available for distribution to our shareholders.
Complying with REIT requirements may cause us to forego otherwise attractive acquisition opportunities or liquidate otherwise attractive investments.
To qualify to be taxed as a REIT for U.S. federal income tax purposes, we must ensure that, at the end of each calendar quarter, at least 75% of the
value of our assets consist of cash, cash items, government securities and "real estate assets" (as defined in the Code), including certain mortgage loans and
securities. The remainder of our investments (other than government securities, qualified real estate assets and securities issued by a TRS) generally cannot
include more than 10% of the outstanding voting securities of any one issuer or more than 10% of the total value of the outstanding securities of any one
issuer. In addition, in general, no more than 5% of the value of our total assets (other than government securities, qualified real estate assets and securities
issued by a TRS) can consist of the securities of any one issuer, and no more than 20% of the value of our total assets can be represented by securities of
one or more TRSs. Lastly, no more than 25% of the value of our total assets can be represented by unsecured debt of publicly traded REITs. If we fail to
comply with these requirements at the end of any calendar quarter, we must correct the failure within 30 days after the end of the calendar quarter or
qualify for certain statutory relief provisions to avoid losing our REIT qualification and suffering adverse tax consequences. As a result, we may be
required to liquidate or forego otherwise attractive investments. These actions could have the effect of reducing our income and amounts available for
distribution to our shareholders.
In addition to the asset tests set forth above, to qualify to be taxed as a REIT we must continually satisfy tests concerning, among other things, the
sources of our income, the amounts we distribute to shareholders and the ownership of our stock. We may be unable to pursue investments that would be
otherwise advantageous to us in order to satisfy the source-of-income or asset-diversification requirements for qualifying as a REIT. Thus, compliance with
the REIT requirements may hinder our ability to make certain attractive investments.
Complying with REIT requirements may limit our ability to hedge effectively and may cause us to incur tax liabilities.
The REIT provisions of the Code substantially limit our ability to hedge our assets and liabilities. Income from certain hedging transactions that
we may enter into to manage risk of interest rate changes with respect to borrowings made or to be made to acquire or carry real estate assets or from
transactions to manage risk of currency fluctuations with respect to any item of income or gain that satisfy the REIT gross income tests (including gain
from the termination of such a transaction) does not constitute "gross income" for purposes of the 75% or 95% gross income tests that apply to REITs,
provided that certain identification requirements are met. To the extent that we enter into other types of hedging transactions or fail to properly identify
such transactions as a hedge, the income is likely to be treated as non-qualifying income for purposes of both of the gross income tests. As a result of these
rules, we may be required to limit our use of advantageous hedging techniques or
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implement those hedges through a TRS. This could increase the cost of our hedging activities because the TRS may be subject to tax on gains or expose us
to greater risks associated with changes in interest rates than we would otherwise want to bear. In addition, losses in the TRS will generally not provide any
tax benefit, except that such losses could theoretically be carried back or forward against past or future taxable income in the TRS.
Risks Related to Our Capital Structure
We may have future capital needs and may not be able to obtain additional financing on acceptable terms.
As of December 31, 2022, we had approximately $6.1 billion in long-term indebtedness, net of unamortized debt issuance costs, bond premiums
and original issuance discounts, consisting of:
•
•
$6,175.0 million of outstanding senior unsecured notes; and
approximately $0.6 million of finance lease liabilities related to certain assets.
We may incur additional indebtedness in the future to refinance our existing indebtedness or to finance newly-acquired properties. Any significant
additional indebtedness could require a substantial portion of our cash flow to make interest and principal payments due on our indebtedness. Greater
demands on our cash resources may reduce funds available to us to pay dividends, make capital expenditures and acquisitions, or carry out other aspects of
our business strategy. Increased indebtedness may also limit our ability to adjust rapidly to changing market conditions, make us more vulnerable to general
adverse economic and industry conditions and create competitive disadvantages for us compared to other companies with relatively lower debt levels
and/or borrowing costs. Increased future debt service obligations may limit our operational flexibility, including our ability to acquire properties, finance or
refinance our properties, contribute properties to joint ventures or sell properties as needed. If we incur additional indebtedness or such other obligations,
the risks associated with our leverage, including our possible inability to service our debt, may increase.
We may be unable to obtain additional financing or financing on favorable terms or our operating cash flow may be insufficient to satisfy our
financial obligations under indebtedness outstanding from time to time (if any). If financing is not available when needed, or is available on unfavorable
terms, we may be unable to develop new or enhance our existing properties, complete acquisitions or otherwise take advantage of business opportunities or
respond to competitive pressures, any of which could have a material adverse effect on our business, financial condition and results of operations.
We have a material amount of indebtedness which could have significant effects on our business including the following:
•
•
•
•
•
•
•
•
it may limit our ability to obtain additional debt or equity financing for working capital, capital expenditures, acquisitions, debt service
requirements and general corporate or other purposes;
a material portion of our cash flows will be dedicated to the payment of principal and interest on our indebtedness, including
indebtedness we may incur in the future, and will not be available for other purposes, including to make acquisitions;
it could limit our flexibility in planning for, or reacting to, changes in our business and the industry in which we operate and place us at a
competitive disadvantage compared to our competitors that have less debt or are less leveraged;
it could make us more vulnerable to downturns in general economic or industry conditions or in our business, or prevent us from carrying
out activities that are important to our growth;
it could increase our interest expense if interest rates in general increase because our indebtedness under the Amended Credit Facility
bears interest at floating rates;
it could limit our ability to take advantage of strategic business opportunities;
it could make it more difficult for us to satisfy our obligations with respect to our indebtedness. Any failure to comply with the
obligations of any of our debt instruments could result in an event of default which, if not cured or waived, could result in the
acceleration of our indebtedness under the Amended Credit Facility and other outstanding debt obligations; and
it could impact our ability to pay dividends to our shareholders.
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We cannot assure you that our business will generate sufficient cash flow from operations, or that future borrowings will be available to us under
our Amended Credit Facility or from other debt financing, in an amount sufficient to enable us to pay our indebtedness or to fund our other liquidity needs.
If we do not generate sufficient cash flow from operations to satisfy our debt service obligations, we may have to undertake alternative financing plans,
such as refinancing or restructuring our indebtedness, selling assets or seeking to raise additional capital, including by issuing equity securities or securities
convertible into equity securities. Our ability to restructure or refinance our indebtedness will depend on the capital markets and our financial condition at
such time. Any refinancing of our indebtedness could be at higher interest rates and may require us to comply with more onerous covenants, which could
further restrict our business operations. Our inability to generate sufficient cash flow to satisfy our debt service requirements or to refinance our obligations
on commercially reasonable terms may have an adverse effect, which could be material to our business, financial position or results of operations.
Our shareholders may be subject to significant dilution caused by the additional issuance of equity securities.
If and when additional funds are raised through the issuance of equity securities, including under our "at the market" offering program relating to
our common stock or in connection with future acquisitions, our shareholders may experience significant dilution. Additionally, sales of substantial
amounts of our common stock in the public market, or the perception that such sales could occur, could adversely affect the market price of our common
stock, make it more difficult for our shareholders to sell their GLPI common stock at a time and price that they deem appropriate and impair our future
ability to raise capital through an offering of our equity securities.
Adverse changes in our credit rating may affect our borrowing capacity and borrowing terms.
Our outstanding debt is periodically rated by nationally recognized credit rating agencies. The credit ratings are based upon our operating
performance, liquidity and leverage ratios, overall financial position, and other factors viewed by the credit rating agencies as relevant to both our industry
and the economic outlook. Our credit rating may affect the amount of capital we can access, as well as the terms of any financing we obtain. Because we
rely in part on debt financing to fund growth, the absence of an investment grade credit rating or any credit rating downgrade may have a negative effect on
our future growth.
If we cannot obtain additional capital, our growth may be limited.
As described above, in order to qualify and maintain our qualification as a REIT each year, we are required to distribute at least 90% of our REIT
taxable income, excluding net capital gains, to our shareholders. As a result, our retained earnings available to fund acquisitions, development, or other
capital expenditures are nominal, and we rely upon the availability of additional debt or equity capital to fund these activities. Our long-term ability to grow
through acquisitions or development, which is an important component of our strategy, may be limited if we cannot obtain additional debt financing or
raise equity capital. Market conditions may make it difficult to obtain debt financing or raise equity capital, and we cannot assure you that we will be able
to obtain additional debt or equity financing or that we will be able to obtain such capital on favorable terms.
An increase in market interest rates could increase our interest costs on existing and future debt and could adversely affect our stock price.
If interest rates increase, so could our interest costs for any new debt and our variable rate debt obligations. This increased cost could make the
financing of any acquisition more costly, as well as lower our current period earnings. Rising interest rates could limit our ability to refinance existing debt
when it matures or cause us to pay higher interest rates upon refinancing. In addition, an increase in interest rates could decrease the access third parties
have to credit, thereby decreasing the amount they are willing to pay for our assets and consequently limiting our ability to reposition our portfolio
promptly in response to changes in economic or other conditions.
Further, the dividend yield on our common stock, as a percentage of the price of such common stock, may influence the price of such common
stock. Thus, an increase in market interest rates may lead prospective purchasers of our common stock to expect a higher dividend yield, which may
adversely affect the market price of our common stock.
The majority of our debt is at fixed rates and our exposure to variable interest rates is currently limited to outstanding obligations, if any, under our
$1.75 billion revolving credit facility (the "Initial Revolving Credit Facility"). This debt instrument is indexed to SOFR.
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Covenants in our debt agreements may limit our operational flexibility, and a covenant breach or default could materially adversely affect our business,
financial position or results of operations.
The agreements governing our indebtedness contain customary covenants, including restrictions on our ability to grant liens on our assets, incur
indebtedness, sell assets, make investments, engage in acquisitions, mergers or consolidations and pay certain dividends and other restricted payments.
Specifically, our debt agreements contain the following financial covenants: a maximum total debt to total asset value ratio of 60% (subject to increase to
65% for specified periods in connection with certain acquisitions), a minimum fixed charge coverage ratio of 1.5 to 1, a maximum senior secured debt to
total asset value ratio of 40% and a maximum unsecured debt to unencumbered asset value ratio of 60%. These restrictions may limit our operational
flexibility. Covenants that limit our operational flexibility as well as defaults under our debt instruments could have a material adverse effect on our
business, financial position or results of operations.
Risk Factors Relating to Our Acquisition of Pinnacle and Tropicana's Gaming Properties
Our recourse against Tropicana, including for any breaches under the Amended Real Estate Purchase Agreement or the Tropicana Merger
Agreement, is limited.
As is customary for a public company target in a merger and acquisition transaction, Tropicana has no obligation to indemnify us or Caesars for
any breaches of its representations and warranties or covenants included in the Tropicana Merger Agreement and the Amended Real Estate Purchase
Agreement, or for any pre-closing liabilities or claims. While we have certain arrangements in place with Caesars in connection with certain limited pre-
closing liabilities, if any issues arise post-closing (other than as provided for in the Second Amended and Restated Caesars Master Lease), we may not be
entitled to sufficient, or any, indemnification or recourse from Tropicana or Caesars, which could have a materially adverse impact on our business and
results of operations.
PENN has contractual obligations to indemnify us for certain liabilities, including liabilities as successor in interest to Pinnacle. However, there can be
no assurance that these indemnities will be sufficient to insure us against the full amount of such liabilities, or that PENN's ability to satisfy its and
Pinnacle's indemnification obligations will not be impaired in the future.
PENN has contractual obligations to indemnify us for certain liabilities, including liabilities as successor in interest to Pinnacle. However, third
parties could seek to hold us responsible for any of the liabilities that PENN and Pinnacle agreed to retain, and there can be no assurance that PENN will be
able to fully satisfy its indemnification obligations. Moreover, even if we ultimately succeed in recovering from PENN any amounts for which we are held
liable, we may be temporarily required to bear these losses while seeking recovery from PENN and such recovery could have a material adverse impact on
PENN's financial condition and ability to pay rent due under the PENN Master Lease and/or the Amended Pinnacle Master Lease.
ITEM 1B. UNRESOLVED STAFF COMMENTS
None.
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ITEM 2. PROPERTIES
Rental Properties
As of December 31, 2022, the Company had 57 rental properties, consisting of the real property associated with 34 gaming and related facilities
operated by PENN, the real property associated with 7 gaming and related facilities operated by Caesars, the real property associated with 4 gaming and
related facilities operated by Boyd, the real property associated with 3 gaming and related facilities operated by the Cordish Companies, the real property
associated with 2 gaming and related facilities operated by Casino Queen and 7 gaming and related facilities operated by Bally's. These property totals
exclude the acquisition of 2 properties from Bally's that occurred on January 3, 2023 as more fully described in Note 18. All rental properties are subject to
long-term triple-net leases. For additional information pertaining to our tenant leases and our rental properties see Item 1.
Corporate Office
The Company's corporate headquarters building is located in Wyomissing, Pennsylvania and is owned by the Company.
ITEM 3. LEGAL PROCEEDINGS
The Company is subject to various legal and administrative proceedings relating to personal injuries, employment matters, commercial transactions
and other matters arising in the normal course of business. The Company does not believe that the financial outcome of these matters will have a material
adverse effect on the Company's consolidated financial position or results of operations. In addition, the Company maintains what it believes is adequate
insurance coverage to further mitigate the risks of such proceedings and requires its tenants to carry insurance and defend and indemnify the Company
from and against any claims or liabilities. However, such proceedings can be costly, time consuming and unpredictable and, therefore, no assurance can be
given that the final outcome of such proceedings may not materially impact the Company's consolidated financial condition or results of operations.
Further, no assurance can be given that the amount or scope of existing insurance coverage carried by the Company or its tenants will be sufficient to cover
losses arising from such matters.
ITEM 4. MINE SAFETY DISCLOSURES
Not applicable.
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ITEM 5. MARKET FOR REGISTRANT'S COMMON EQUITY, RELATED SHAREHOLDER MATTERS AND ISSUER PURCHASES OF
PART II
EQUITY SECURITIES
Market Information
Our common stock is quoted on the NASDAQ Global Select Market under the symbol "GLPI." As of February 14, 2023, there were approximately
710 holders of record of our common stock.
Dividend Policy
The Company's annual dividend is greater than or equal to at least 90% of its REIT taxable income on an annual basis, determined without regard to
the dividends paid deduction and excluding any net capital gains. U.S. federal income tax law generally requires that a REIT annually distribute at least
90% of its REIT taxable income, without regard to the deduction for dividends paid and excluding net capital gains, and that it pays tax at regular corporate
rates on any undistributed income to the extent that it distributes less than 100% of its taxable income in any tax year.
Cash available for distribution to GLPI shareholders is derived from income from real estate. All distributions will be made by GLPI at the
discretion of its Board of Directors and will depend on the financial position, results of operations, cash flows, capital requirements, debt covenants,
applicable laws and other factors as the Board of Directors of GLPI deems relevant. See Note 16 to the Consolidated Financial Statements for further
details on dividends.
ITEM 6. RESERVED
ITEM 7. MANAGEMENT’S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF OPERATIONS
Our Operations
GLPI is a self-administered and self-managed Pennsylvania REIT. The Company was formed from the 2013 tax-free spin-off of the real estate
assets of PENN and was incorporated in Pennsylvania on February 13, 2013, as a wholly-owned subsidiary of PENN. On November 1, 2013, PENN
contributed to GLPI, through a series of internal corporate restructurings, substantially all of the assets and liabilities associated with PENN's real property
interests and real estate development business, as well as the assets and liabilities of the TRS Properties and then spun-off GLPI to holders of PENN's
common and preferred stock in the Spin-Off.
The Company elected on its U.S. federal income tax return for its taxable year that began on January 1, 2014 to be treated as a REIT and the
Company, together with an indirect wholly-owned subsidiary of the Company, GLP Holdings, Inc., jointly elected to treat each of GLP Holdings, Inc.,
Louisiana Casino Cruises, Inc. (d/b/a Hollywood Casino Baton Rouge) and Penn Cecil Maryland, Inc. (d/b/a Hollywood Casino Perryville) as a "taxable
REIT subsidiary" effective on the first day of the first taxable year of GLPI as a REIT. In addition, during 2020, the Company and Tropicana LV, LLC, a
wholly owned subsidiary of the Company that holds the real estate of Tropicana Las Vegas, elected to treat Tropicana LV, LLC as a “taxable REIT
subsidiary”. Further, as partial consideration for the transactions with Cordish described below, GLP Capital issued 7,366,683 newly-issued OP Units to
affiliates of Cordish. OP Units are exchangeable for common shares of the Company on a one-for-one basis, subject to certain terms and conditions. In
advance of the UPREIT Transaction being consummated, the Company, along with GLP Financing II, jointly elected for GLP Financing II, Inc. to be
treated as a TRS effective December 23, 2021. As a result of the Spin-Off, GLPI owns substantially all of PENN's former real property assets (as of the
consummation of the Spin-Off) and leases back most of those assets to PENN for use by its subsidiaries, under the PENN Master Lease. The assets and
liabilities of GLPI were recorded at their respective historical carrying values at the time of the Spin-Off. In 2021, as a result of the sale of the operations of
Hollywood Casino Perryville and Hollywood Casino Baton Rouge, GLP Holdings, Inc. was merged into GLP Capital.
GLPI's primary business consists of acquiring, financing, and owning real estate property to be leased to gaming operators in triple-net lease
arrangements. As of December 31, 2022, GLPI's portfolio consisted of interests in 57 gaming and related facilities, which was comprised of the real
property associated with 34 gaming and related facilities operated by PENN, the real property associated with 7 gaming and related facilities operated by
Caesars, the real property associated with 4 gaming and related facilities operated by Boyd, the real property associated with 7 gaming and related facilities
operated by Bally's, the real property associated with 3 gaming and related facilities operated by Cordish and the real property associated with 2 gaming
and related facilities operated by Casino Queen. These facilities, including our corporate headquarters building, are
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geographically diversified across 17 states and contain approximately 27.8 million square feet. As of December 31, 2022, our properties were 100%
occupied. These figures do not include the January 3, 2023 acquisition of the real property assets of Bally's Biloxi and Bally's Tiverton which added 2.4
million of property square feet, and diversified the Company into Rhode Island. We expect to continue growing our portfolio by pursuing opportunities to
acquire additional gaming facilities to lease to gaming operators under prudent terms.
PENN Master Lease
The PENN Master Lease is a triple-net operating lease, the term of which expires October 31, 2033, with no purchase option, followed by three
remaining 5-year renewal options (exercisable by the tenant) on the same terms and conditions. See Note 12 for further details regarding such renewal
options. Additionally, see Note 18 for additional information related to the creation of a new master lease with PENN.
Amended Pinnacle Master Lease, Boyd Master Lease and Belterra Park Lease
In April 2016, the Company acquired substantially all of the real estate assets of Pinnacle for approximately $4.8 billion. GLPI originally leased
these assets back to Pinnacle, under the Pinnacle Master Lease, the term of which expires on April 30, 2031, with no purchase option, followed by four
remaining 5-year renewal options (exercisable by the tenant) on the same terms and conditions. On October 15, 2018, the Company completed the
previously announced PENN-Pinnacle Merger to accommodate PENN's acquisition of the majority of Pinnacle's operations, pursuant to a definitive
agreement and plan of merger between PENN and Pinnacle, dated December 17, 2017. Concurrent with the PENN-Pinnacle Merger, the Company
amended the Pinnacle Master Lease to allow for the sale of the operating assets of Ameristar Casino Hotel Kansas City, Ameristar Casino Resort Spa St.
Charles and Belterra Casino Resort from Pinnacle to Boyd and entered into the Boyd Master Lease for these properties on terms similar to the Company’s
Amended Pinnacle Master Lease. The Boyd Master Lease has an initial term of 10 years (from the original April 2016 commencement date of the Pinnacle
Master Lease and expiring April 30, 2026), with no purchase option, followed by five 5-year renewal options (exercisable by the tenant) on the same terms
and conditions. The Company also purchased the real estate assets of Plainridge Park from PENN for $250.0 million, exclusive of transaction fees and
taxes and added this property to the Amended Pinnacle Master Lease. The Amended Pinnacle Master Lease was assumed by PENN at the consummation
of the PENN-Pinnacle Merger. The Company also entered into the Belterra Park Loan with Boyd in connection with Boyd's acquisition of Belterra Park. In
May 2020, the Company acquired the real estate of Belterra Park in satisfaction of the Belterra Park Loan, subject to the Belterra Park Lease with a Boyd
affiliate operating the property. The Belterra Park Lease rent terms are consistent with the Boyd Master Lease. The annual rent is comprised of a fixed
component, part of which is subject to an annual escalator of up to 2% if certain rent coverage ratio thresholds are met, and a component that is based on
the performance of the facilities which is adjusted, subject to certain floors, every two years to an amount equal to 4% of the average annual net revenues of
Belterra Park during the preceding two years in excess of a contractual baseline.
The Meadows Lease
The real estate assets of the Meadows Racetrack and Casino are leased to PENN pursuant to the Meadows Lease. The Meadows Lease
commenced on September 9, 2016 and has an initial term of 10 years, with no purchase option, and the option to renew for three successive 5-year terms
and one 4-year term (exercisable by the tenant) on the same terms and conditions. The Meadows Lease contains a fixed component, subject to annual
escalators, and a component that is based on the performance of the facility, which is reset every two years to an amount determined by multiplying (i) 4%
by (ii) the average annual net revenues of the facility for the trailing two-year period. The Meadows Lease contains an annual escalator provision for up to
5% of the base rent, if certain rent coverage ratio thresholds are met, which remains at 5% until the earlier of ten years or the year in which total rent is $31
million, at which point the escalator will be reduced to a maximum of 2% annually thereafter. As described in Note 18, the Meadows Lease was terminated
during 2023 and the real estate associated with the property became part of a new master lease with PENN.
Second Amended and Restated Caesars Master Lease
On October 1, 2018, the Company closed its previously announced transaction to acquire certain real property assets from Tropicana and certain
of its affiliates pursuant to the Amended Real Estate Purchase Agreement. Pursuant to the terms of the Amended Real Estate Purchase Agreement, the
Company acquired the real estate assets of Tropicana Atlantic City, Tropicana Evansville, Tropicana Laughlin, Trop Casino Greenville and the Belle of
Baton Rouge from Tropicana for an aggregate cash purchase price of $964.0 million, exclusive of transaction fees and taxes. Concurrent with the Tropicana
Acquisition, Eldorado Resorts, Inc. (now doing business as Caesars) acquired the operating assets of these properties from Tropicana pursuant to an
Agreement and Plan of Merger dated April 15, 2018 by and among Tropicana, GLP Capital, Caesars
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and a wholly-owned subsidiary of Caesars and leased the GLP Assets from the Company pursuant to the terms of the Caesars Master Lease.
On June 15, 2020, the Company entered into the Amended and Restated Caesars Master Lease to, (i) extend the initial term of 15 years to 20
years, with renewals of up to an additional 20 years at the option of Caesars, (ii) remove the variable rent component in its entirety commencing with the
third lease year, (iii) in the third lease year, increase annual land base rent to approximately $23.6 million and annual building base rent to approximately
$62.1 million, (iv) provide fixed escalation percentages that delay the escalation of building base rent until the commencement of the fifth lease year with
building base rent increasing annually by 1.25% in the fifth and sixth lease years, 1.75% in the seventh and eighth lease years and 2% in the ninth lease
year and each lease year thereafter, (v) subject to the satisfaction of certain conditions, permit Caesars to elect to replace the Tropicana Evansville and/or
Tropicana Greenville properties under the Amended and Restated Caesars Master Lease with one or more of Caesars Gaming Scioto Downs, The Row in
Reno, Isle Casino Racing Pompano Park, Isle Casino Hotel – Black Hawk, Lady Luck Casino – Black Hawk, Waterloo, Bettendorf or Isle of Capri Casino
Boonville, provided that the aggregate value of such new property, individually or collectively, is at least equal to the value of Tropicana Evansville or
Tropicana Greenville, as applicable, (vi) permit Caesars to elect to sell its interest in Belle of Baton Rouge and sever it from the Amended and Restated
Caesars Master Lease (with no change to the rent obligation to the Company), subject to the satisfaction of certain conditions, and (vii) provide certain
relief under the operating, capital expenditure and financial covenants thereunder in the event of facility closures due to pandemics, governmental
restrictions and certain other instances of unavoidable delay. The effectiveness of the Amended and Restated Caesars Master Lease was subject to the
review of certain gaming regulatory agencies and the expiration of applicable gaming regulatory advance notice periods which were received on July 23,
2020.
On December 18, 2020, the Company and Caesars entered into the Second Amended and Restated Caesars Master Lease in connection with the
completion of the Exchange Agreement with subsidiaries of Caesars in which Caesars transferred to the Company the real estate assets of Waterloo and
Bettendorf in exchange for the transfer by the Company to Caesars of the real property assets of Tropicana Evansville, plus a cash payment of $5.7 million.
In connection with the Exchange Agreement, the annual building base rent was increased to $62.5 million and the annual land component was increased to
$23.7 million. The Exchange Agreement also resulted in a non-cash gain of $41.4 million in the fourth quarter of 2020, which represented the difference
between the fair value of the properties received compared to the carrying value of Tropicana Evansville and the cash payment made.
Horseshoe St. Louis Lease
On October 1, 2018 the Company entered into a loan agreement with Caesars in connection with Caesars’s acquisition of Horseshoe St. Louis,
whereby the Company extended funds to Caesars under the CZR loan. On the one-year anniversary of the CZR loan, the mortgage evidenced by a deed of
trust on the Horseshoe St. Louis property terminated and the loan became unsecured. On June 24, 2020, the Company received approval from the Missouri
Gaming Commission to own the Horseshoe St. Louis property in satisfaction of the CZR loan. On September 29, 2020, the transaction closed and we
entered into the Horseshoe St. Louis Lease, the initial term of which expires on October 31, 2033 with four separate renewal options of five years each,
exercisable at the tenant's option. The Horseshoe St. Louis Lease rent terms were adjusted on December 1, 2021 such that the annual escalator is now fixed
at 1.25% for the second through fifth lease years, increasing to 1.75% for the sixth and seventh lease years and thereafter increasing by 2.0% for the
remainder of the lease.
Bally's Master Lease
On June 3, 2021, the Company completed its previously announced transaction pursuant to which a subsidiary of Bally's acquired 100% of the
equity interests in the Caesars subsidiary that currently operates Tropicana Evansville and the Company reacquired the real property assets of Tropicana
Evansville from Caesars for a cash purchase price of approximately $340.0 million. In addition, the Company purchased the real estate assets of Dover
Downs Hotel & Casino from Bally's for a cash purchase price of approximately $144.0 million. The real estate assets of these two facilities were added to
the Bally's Master Lease which has an initial term of 15 years, with no purchase option, followed by four five-year renewal options (exercisable by the
tenant) on the same terms and conditions. Rent under the Bally's Master Lease is subject to contractual escalations based on the CPI, with a 1% floor and a
2% ceiling, subject to the CPI meeting a 0.5% threshold.
On April 1, 2022, the Company completed the previously announced acquisition from Bally's of the land and real estate assets of Bally's three
Black Hawk Casinos in Black Hawk, Colorado and Bally's Quad Cities Casino & Hotel in Rock Island, Illinois for $150 million in total consideration.
These properties were added to the existing Bally's Master Lease and the initial annual rent was increased by $12 million and is subject to the escalation
clauses described above.
On January 3, 2023, the Company completed its previously announced acquisition of the real property assets of Bally's
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Tiverton in Tiverton, Rhode Island and Bally's Biloxi in Biloxi, Mississippi for $635 million in consideration, inclusive of $15 million in the form of OP
Units. These properties were added to the Company's Master Lease with Bally's. The initial rent for the lease was increased by $48.5 million on an
annualized basis, subject to escalation clauses described above.
In connection with the closing, a $200 million deposit funded by GLPI in September 2022 was returned to the Company along with a $9.0 million
transaction fee that will be recorded against the purchase price of the assets acquired. Concurrent with the closing, GLPI borrowed $600 million under its
previously structured delayed draw term loan.
GLPI continues to have the option, subject to receipt by Bally's of required consents, to acquire the real property assets of Bally's Lincoln in
Lincoln, RI prior to December 31, 2024 for a purchase price of $771 million and additional rent of $58.8 million.
Tropicana Las Vegas
On April 16, 2020, the Company and certain of its subsidiaries closed on its previously announced transaction to acquire the real property
associated with the Tropicana Las Vegas from PENN in exchange for rent credits of $307.5 million, which were applied against future rent obligations due
under the parties' existing leases during 2020.
On September 26, 2022, Bally’s acquired both GLPI’s building assets and PENN's outstanding equity interests in Tropicana Las Vegas Hotel and
Casino, Inc. for an aggregate cash acquisition price, net of fees and expenses, of approximately $145 million, which resulted in a pre-tax gain of $67.4
million. GLPI retained ownership of the land and concurrently entered into a ground lease for an initial term of 50 years (with a maximum term of 99 years
inclusive of tenant renewal options) with initial annual rent of $10.5 million subject to contractual escalations based on the CPI, with a 1% floor and a 2%
ceiling, subject to CPI meeting a 0.5% threshold. The ground lease is supported by a Bally’s corporate guarantee and cross-defaulted with the Bally's
Master Lease.
Morgantown Lease
On October 1, 2020, the Company and PENN closed on their previously announced transaction whereby GLPI acquired the land under PENN's
gaming facility under construction in Morgantown, Pennsylvania in exchange for $30.0 million in rent credits that were utilized by PENN in the fourth
quarter of 2020. The Company is leasing the land back to an affiliate of PENN pursuant to the Morgantown Lease for an initial annual rent of $3.0 million,
provided, however, that (i) on the opening date and on each anniversary thereafter the rent shall be increased by 1.5% annually (on a prorated basis for the
remainder of the lease year in which the gaming facility opens) for each of the following three lease years and (ii) commencing on the fourth anniversary of
the opening date and for each anniversary thereafter, (a) if the CPI increase is at least 0.5% for any lease year, the rent for such lease year shall increase by
1.25% of rent as of the immediately preceding lease year, and (b) if the CPI increase is less than 0.5% for such lease year, then the rent shall not increase
for such lease year subject to escalation provisions following the opening of the property. Hollywood Casino Morgantown opened on December 22, 2021.
Casino Queen Master Lease
On November 25, 2020, the Company entered into a definitive agreement with respect to the HCBR transaction. The HCBR transaction closed on
December 17, 2021 which resulted in a pre-tax gain of $6.8 million (loss of $7.7 million after tax) for the year ended December 31, 2021. The Company
retained ownership of all real estate assets at Hollywood Casino Baton Rouge and simultaneously entered into the Casino Queen Master Lease. The initial
annual cash rent is approximately $21.4 million and the lease has an initial term of 15 years with four 5 year renewal options exercisable by the tenant. See
Note 12 for a discussion regarding such renewal options. This rental amount will be increased annually by 0.5% for the first six years. Beginning with the
seventh lease year through the remainder of the lease term, if the CPI increases by at least 0.25% for any lease year then annual rent shall be increased by
1.25%, and if the CPI increase is less than 0.25% then rent will remain unchanged for such lease year. Additionally, the Company will complete the current
landside development project that is in process and the rent under the master lease will be adjusted upon delivery to reflect a yield of 8.25% on GLPI's
project costs. The Company will also have a right of first refusal with Casino Queen for other sale leaseback transactions up to $50 million until December
2023. Finally, GLPI forgave the unsecured $13.0 million, 5.5 year term loan made to CQ Holding Company, Inc., an affiliate of Casino Queen, which was
previously fully impaired in return for a one-time cash payment of $4 million which was recorded in provision for credit losses, net during the year ended
December 31, 2021.
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Perryville Lease
On December 15, 2020, the Company announced that PENN exercised its option to purchase from the Company the operations of our Hollywood
Casino Perryville, located in Perryville, Maryland, for $31.1 million. The transaction closed on July 1, 2021 and the real estate assets of the Hollywood
Casino Perryville are being leased to PENN pursuant to the Perryville Lease. A pre-tax gain of $15.6 million ($11.3 million after tax) was recorded during
the year ended December 31, 2021 in connection with the sale of the operating assets to PENN. As described in Note 18, the Perryville Lease was
terminated during 2023 and the real estate associated with the property became part of a new master lease with PENN.
Maryland Live! Lease and Pennsylvania Live! Master Lease
On December 6, 2021, the Company announced that it had agreed to acquire the real property assets of Live! Casino & Hotel Maryland, Live!
Casino & Hotel Philadelphia, and Live! Casino Pittsburgh, including applicable long-term ground leases, from affiliates of Cordish for aggregate
consideration of approximately $1.81 billion, excluding transaction costs, at deal announcement. The transaction also includes a binding partnership on
future Cordish casino developments, as well as potential financing partnerships between the Company and Cordish in other areas of Cordish's portfolio of
real estate and operating businesses. On December 29, 2021, GLPI closed the acquisition of the Live! Casino & Hotel Maryland transaction and GLPI
entered into the Maryland Live! Lease. On March 1, 2022, GLPI closed the acquisition of the Live! Casino & Hotel Philadelphia and Live! Casino
Pittsburgh and leased back the real estate to Cordish pursuant to the Pennsylvania Live! Master Lease. The Pennsylvania Live! Master Lease and the
Maryland Live! Lease each have initial lease terms of 39 years, with maximum terms of 60 years inclusive of tenant renewal options. The annual rent for
the Maryland Live! Lease is $75 million and the Pennsylvania Live! Master Lease is $50 million. Both leases have a 1.75% fixed yearly escalator on the
entirety of rent commencing on the leases' second anniversary.
The majority of our earnings are the result of revenues we receive from our triple-net master leases with PENN, Boyd, Bally's, Cordish and
Caesars. Additionally, we have rental revenue from the Casino Queen Master Lease which is also a triple net lease. In addition to rent, the tenants are
required to pay the following executory costs: (1) all facility maintenance, (2) all insurance required in connection with the leased properties and the
business conducted on the leased properties, including coverage of the landlord's interests, (3) taxes levied on or with respect to the leased properties (other
than taxes on the income of the lessor) and (4) all utilities and other services necessary or appropriate for the leased properties and the business conducted
on the leased properties.
Additionally, in accordance with Accounting Standards Codification ("ASC 842"), we record revenue for the ground lease rent paid by our tenants
with an offsetting expense in land rights and ground lease expense within the Consolidated Statement of Income as we have concluded that as the lessee we
are the primary obligor under the ground leases. We sublease these ground leases back to our tenants, who are responsible for payment directly to the
landlord.
Gaming revenue for our TRS Properties (whose operations we sold during 2021) was derived primarily from gaming on slot machines and to a
lesser extent, table game and poker revenue, which was highly dependent upon the volume and spending levels of customers at our TRS Properties. Other
revenues at our TRS Properties were derived from our dining, retail and certain other ancillary activities.
Our Competitive Strengths
We believe the following competitive strengths will contribute significantly to our success:
Geographically Diverse Property Portfolio
As of December 31, 2022, our portfolio consisted of 57 gaming and related facilities. Our portfolio, including our corporate headquarters building,
comprises approximately 27.8 million square feet and approximately 5,200 acres of land and is broadly diversified by location across 17 states. We expect
that our geographic diversification will limit the effect of a decline in any one regional market on our overall performance. These figures do not include the
January 3, 2023 acquisition of Bally's Biloxi and Bally's Tiverton real property assets which added 2.4 million of property square feet, and 55.3 acres of
land and diversified the Company into Rhode Island.
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Financially Secure Tenants
Five of the company's tenants, PENN, Caesars, Boyd, Cordish and Bally's, are leading, diversified, multi-jurisdictional owners and managers of
gaming and pari-mutuel properties and established gaming providers with strong financial performance. With the exception of Cordish, all of the
aforementioned tenants are publicly traded companies that are subject to the informational filing requirements of the Securities Exchange Act of 1934, as
amended, and are required to file periodic reports on Form 10-K and Form 10-Q and current reports on Form 8-K with the Securities and Exchange
Commission ("SEC"). Readers are directed to PENN's, Caesar's, Boyd's and Bally's respective websites for further financial information on these
companies.
Long-Term, Triple-Net Lease Structure
Our real estate properties are leased under long-term triple-net leases guaranteed by our tenants, pursuant to which the tenant is responsible for all
facility maintenance, insurance required in connection with the leased properties and the business conducted on the leased properties, including coverage of
the landlord's interests, taxes levied on or with respect to the leased properties (other than taxes on our income) and all utilities and other services necessary
or appropriate for the leased properties and the business conducted on the leased properties.
Resilient Regional Gaming Characteristics
We believe that the recession resulting from the COVID-19 pandemic has illustrated the resiliency of the regional gaming market. In spite of all
our properties being forced to close during mid-March 2020, the Company collected all contractual rents, inclusive of rent credits, due in 2020.
Furthermore, our tenants' results since they have reopened has been strong and in some cases better than prior to COVID-19, due to their increased focus on
cost efficiencies and decreasing and/or eliminating lower margin amenities. For instance, the rent coverage ratios on all of our leases except for the
Meadows Lease have increased at September 30, 2022 compared to pre-COVID-19 levels at December 31, 2019. Although we are unable to predict
whether these results will continue, we believe that our assets should generate substantial cash flows well into the future for both ourselves and our tenants.
Flexible UPREIT Structure
We operate through an umbrella partnership, commonly referred to as an UPREIT structure, in which substantially all of our properties and assets
are held by GLP Capital or by subsidiaries of GLP Capital. Conducting business through GLP Capital allows us flexibility in the manner in which we
structure and acquire properties. In particular, an UPREIT structure enables us to acquire additional properties from sellers in exchange for limited
partnership units, which provides property owners the opportunity to defer the tax consequences that would otherwise arise from a sale of their real
properties and other assets to us. As a result, this structure potentially may facilitate our acquisition of assets in a more efficient manner and may allow us
to acquire assets that the owner would otherwise be unwilling to sell because of tax considerations. We believe that this flexibility will provide us an
advantage in seeking future acquisitions.
Experienced and Committed Management Team
Our management team has extensive gaming and real estate experience. Peter M. Carlino, our chief executive officer, has more than 30 years of
experience in the acquisition and development of gaming facilities and other real estate projects. Through years of public company experience, our
management team also has extensive experience accessing both debt and equity capital markets to fund growth and maintain a flexible capital structure.
Segment Information
Due to the sale of the operations of Hollywood Casino Perryville and Hollywood Casino Baton Rouge, the Company's operations consist solely of
investments in real estate for which all such real estate properties are similar to one another in that they consist of destination and leisure properties and
related offerings, whose tenants offer casino gaming, hotel, convention, dining, entertainment and retail amenities, have similar economic characteristics
and are governed by triple-net operating leases. The operating results of the Company's real estate investments are reviewed in the aggregate, by the chief
operating decision maker (as such term is defined in ASC 280 - Segment Reporting). As such, as of January 1, 2022, the Company has one reportable
segment.
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Executive Summary
Financial Highlights
We reported total revenues and income from operations of $1,311.7 million and $1,029.9 million, respectively, for the year ended December 31,
2022, compared to $1,216.4 million and $841.8 million, respectively, for the year ended December 31, 2021. The major factors affecting our results for the
year ended December 31, 2022, as compared to the year ended December 31, 2021, were as follows:
•
Total income from real estate was $1,311.7 million and $1,106.7 million for the years ended December 31, 2022 and 2021, respectively. Total
income from real estate increased by $205.0 million for the year ended December 31, 2022, as compared to the year ended December 31, 2021.
Current results benefited from the additions and/or full year impact of the Maryland Live! Lease, the Pennsylvania Live! Master Lease, Bally's
Master Lease, the Casino Queen Master Lease, the Perryville Lease and the Tropicana Las Vegas Lease which in the aggregate increased cash
rental income by $156.6 million. Current year results also benefited by $12.4 million from full escalations being incurred on the PENN Master
Lease, the Amended Pinnacle Master Lease, the Boyd Master Lease, the Bally's Master Lease and the Belterra Park Lease. The Company also
recognized accretion of $19.4 million on its Investment in leases, financing receivables and had higher ground rent revenue gross ups of $14.4
million compared to the prior year due primarily from the additions of the Maryland Live! Lease and the Bally's Master Lease. Finally, the
Company had higher percentage rents of $1.0 million due primarily to strong performance at its tenants properties upon reopening from the
COVID-19 mandated closures which negatively impacted the 2020 variable rent resets for certain leases.
• Gaming, food, beverage and other revenue decreased by $109.7 million for the year ended December 31, 2022, as compared to the prior year due
to the sale of the operations of the Hollywood Casino Perryville and Hollywood Casino Baton Rouge in 2021.
•
Total operating expenses decreased by $92.8 million for the year ended December 31, 2022, as compared to the prior year. Gains from dispositions
of property increased $45.7 million compared to the prior year due to the sale of of the Tropicana Las Vegas building to Bally's that closed on
September 26, 2022 which resulted in a gain of $67.4 million. Gains from dispositions of property for the year ended December 31, 2021 included
gains of $22.4 million attributable to the sale of operations of Hollywood Casino Perryville and Hollywood Casino Baton Rouge. The sale of the
operations of Hollywood Casino Perryville and Hollywood Casino Baton Rouge led to a $53.0 million decline in gaming, food, beverage and
other expense as well as a $9.9 million reduction in general and administrative expenses due to the sales partially offset by higher acquisition
expenses, payroll and benefit expenses, insurance costs as well as increased stock based compensation charges. During the year ended
December 31, 2022, the Company recorded non-cash provision for credit losses, net of $6.9 million compared to provisions for credit losses, net
of $8.2 million for the year ended December 31, 2021. The Company incurred higher depreciation expense of $2.3 million due to its recent
acquisitions. Finally, the Company incurred higher land rights and ground lease expense of $11.7 million due to higher ground lease rents paid by
our tenants due to the acquisition of the real estate of Maryland Live! Hotel & Casino and Pittsburgh Live! Casino, which both have ground leases
and higher land right amortization due to a partial donation of leased land that occurred in the first quarter of 2022 as well as the full year impact
of the June 3, 2021 acquisition of Tropicana Evansville.
• Other expenses, net increased by $30.2 million for the year ended December 31, 2022, as compared to the prior year, primarily due to higher
interest expense associated with the increased borrowings to fund our recent acquisitions.
•
Income tax expense decreased by $11.3 million for the year ended December 31, 2022 as compared to the prior year primarily due to the year over
year variances associated with the sale of the Tropicana Las Vegas building to Bally's in 2022 compared with the prior year income tax expense
associated with the sale of the operations of Hollywood Casino Perryville and Hollywood Casino Baton Rouge.
• Net income increased by $169.2 million for the year ended December 31, 2022, as compared to the prior year, primarily due to the variances
explained above.
Critical Accounting Estimates
We make certain judgments and use certain estimates and assumptions when applying accounting principles in the preparation of our consolidated
financial statements. The nature of the estimates and assumptions are material due to the levels of subjectivity and judgment necessary to account for highly
uncertain factors or the susceptibility of such factors to change.
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We have identified the accounting for leases, investment in leases, financing receivables, net, allowance for credit losses, income taxes, and real estate
investments as critical accounting estimates, as they are the most important to our financial statement presentation and require difficult, subjective and
complex judgments.
We believe the current assumptions and other considerations used to estimate amounts reflected in our consolidated financial statements are
appropriate. However, if actual experience differs from the assumptions and other considerations used in estimating amounts reflected in our consolidated
financial statements, the resulting changes could have a material adverse effect on our consolidated results of operations and, in certain situations, could
have a material adverse effect on our consolidated financial condition.
Leases
As a REIT, the majority of our revenues are derived from rent received from our tenants under long-term triple-net leases. Currently, we have
master leases with PENN, Caesars, Bally's, Boyd, Cordish and Casino Queen. We also have separate single property leases with PENN, Caesars, Boyd and
Cordish. The accounting guidance under ASC 842 is complex and requires the use of judgments and assumptions by management to determine the proper
accounting treatment of a lease. We perform a lease classification test upon the entry into any new tenant lease or lease modification to determine if we will
account for the lease as an operating or sales-type lease. The revenue recognition model and thus the presentation of our financial statements is significantly
different under operating leases and sales-type leases.
Under the operating lease model, as the lessor, the assets we own and lease to our tenants remain on our balance sheet as real estate investments
and we record rental revenues on a straight-line basis over the lease term. This includes the recognition of percentage rents that are fixed and determinable
at the lease inception date on a straight-line basis over the entire lease term, resulting in the recognition of deferred rental revenue on our Consolidated
Balance Sheets. Deferred rental revenue is amortized to rental revenue on a straight-line basis over the remainder of the lease term. The lease term includes
the initial non-cancelable lease term and any reasonably assured renewal periods. Contingent rental income that is not fixed and determinable at lease
inception is recognized only when the lessee achieves the specified target.
Under the sales-type lease model, however, at lease inception we would record an Investment in leases, financing receivables on our Consolidated
Balance Sheet rather than recording the actual assets we own. Furthermore, the cash rent we receive from tenants is not recorded as rental revenue, but
rather a portion is recorded as interest income using an effective yield and a portion is recorded as a reduction to the Investment in leases, financing
receivables. Under ASC 842, for leases with both land and building components, leases may be bifurcated between operating and sales-type leases. To
determine if our real estate leases trigger full or partial sales-type lease treatment we conduct the five lease tests outlined in ASC 842 below. If a lease
meets any of the five criteria below, it is accounted for as a sales-type lease.
1) Transfer of ownership - The lease transfers ownership of the underlying asset to the lessee by the end of the lease term. This criterion is met in
situations in which the lease agreement provides for the transfer of title at or shortly after the end of the lease term in exchange for the payment of a
nominal fee, for example, the minimum required by statutory regulation to transfer title.
2) Bargain purchase option - The lease contains a bargain purchase option, which is a provision allowing the lessee, at its option, to purchase the
leased property for a price which is sufficiently lower than the expected fair value of the property at the date the option becomes exercisable and that is
reasonably certain to be exercised.
3) Lease term - The lease term is for the major part of the remaining economic life of the underlying asset. However, if the commencement date falls
at or near the end of the economic life of the underlying asset, this criterion shall not be used for purposes of classifying the lease.
4) Minimum lease payments - The present value of the sum of the lease payments and any residual value guaranteed by the lessee that is not
already reflected in the lease payments equals or exceeds substantially all of the fair value of the underlying asset.
5) Specialized nature - The underlying asset is of such specialized nature that it is expected to have no alternative use to the lessor at the end of the
lease term.
The tests outlined above, as well as the resulting calculations, require subjective judgments, such as determining, at lease inception, the fair value
of the underlying leased assets, the residual value of the assets at the end of the lease term, the likelihood a tenant will exercise all renewal options (in order
to determine the lease term), the estimated remaining economic
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life of the leased assets, and an allocation of rental income received under our Master Leases to the underlying leased assets. A slight change in estimate or
judgment can result in a materially different financial statement presentation and income recognition method.
Investment in Leases, Financing Receivables, net
In accordance with ASC 842, for transactions in which we enter into a contract to acquire an asset and lease it back to the seller under a sales-type
lease (i.e. a sale leaseback transaction), the Company must determine whether control of the asset has transferred to us. In cases whereby control has not
transferred to the Company, we do not recognize the underlying asset but instead recognize a financial asset in accordance with ASC 310 "Receivables".
The accounting for the financing receivable under ASC 310 is materially consistent with the accounting for our investments in leases - sales type under
ASC 842. We have concluded that each of the Maryland Live! Lease and the Pennsylvania Live! Master Lease are required to be accounted for as an
Investment in leases - financing receivable on our Consolidated Balance Sheets in accordance with ASC 310, since control of the underlying assets was not
considered to have transferred to the Company under GAAP.
Allowance for credit losses
The Company follows ASC 326 “Credit Losses” (“ASC 326”), which requires that the Company measure and record current expected credit
losses (“CECL”), the scope of which includes our Investments in leases - financing receivables.
We have elected to use an econometric default and loss rate model to estimate the Allowance for credit losses, or CECL allowance. This model
requires us to calculate and input lease and property-specific credit and performance metrics which in conjunction with forward-looking economic
forecasts, project estimated credit losses over the life of the lease or loan. The Company then records a CECL allowance based on the expected loss rate
multiplied by the outstanding Investment in leases, financing receivable balance.
Expected losses within our cash flows are determined by estimating the probability of default (“PD”) and loss given default (“LGD”) of our
Investments in lease - financing receivable. We have engaged a nationally recognized data analytics firm to assist us with estimating both the PD and LGD
for this financing receivable. The PD and LGD are estimated during the initial term of the lease. The PD and LGD estimates for the lease term were
developed using current financial condition forecasts. The PD and LGD predictive model was developed using the average historical default rates and
historical loss rates, respectively, of over 100,000 commercial real estate loans dating back to 1998 that have similar credit profiles or characteristics to the
real estate underlying the Company's financing receivables. Management will monitor the credit risk related to its financing receivables by obtaining the
rent coverage on the Maryland Live! Lease and Pennsylvania Live! Master Lease on a periodic basis. The Company also monitors legislative changes to
assess whether it would have an impact on the underlying performance of its tenant. We are unable to use our historical data to estimate losses as the
Company has no loss history to date on its lease portfolio.
The CECL allowance is recorded as a reduction to our net Investments in leases - financing receivable, on our Consolidated Balance Sheets. We
are required to update our CECL allowance on a quarterly basis with the resulting change being recorded in the Consolidated Statements of Income for the
relevant period. Finally, each time the Company makes a new investment in an asset subject to ASC 326, we will be required to record an initial CECL
allowance for such asset, which will result in a non-cash charge to the Consolidated Statement of Income for the relevant period. Changes in economic
conditions and/or the underlying performance of the property contained within our leases accounted for as financing receivables impacts the assumptions
utilized in the CECL reserve estimates. Changes in our assumptions could result in non-cash provisions or recoveries in future periods that could materially
impact our results of operations.
Income Taxes - REIT Qualification
We elected on our U.S. federal income tax return for our taxable year that began on January 1, 2014 to be treated as a REIT and we, together with
an indirect wholly-owned subsidiary of the Company, GLP Holdings, Inc., jointly elected to treat each of GLP Holdings, Inc., Louisiana Casino
Cruises, Inc. and Penn Cecil Maryland, Inc. as a TRS effective on the first day of the first taxable year of GLPI as a REIT. In addition, during 2020, the
Company and Tropicana LV, LLC, a wholly owned subsidiary of the Company which holds the real estate of Tropicana Las Vegas, elected to treat
Tropicana LV, LLC as a TRS. Finally, in advance of the UPREIT Transaction, the Company, together with GLP Financing II, jointly elected for GLP
Financing II, Inc. to be treated as a TRS effective December 23, 2021. We intend to continue to be organized and to operate in a manner that will permit us
to qualify as a REIT. To qualify as a REIT, we must meet certain organizational and operational requirements, including a requirement to distribute at least
90% of our annual REIT taxable income to shareholders determined without regard to the dividends paid deduction and excluding any net capital gain, and
meet the various other requirements
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imposed by the Code relating to matters such as operating results, asset holdings, distribution levels, and diversity of stock ownership.
As a REIT, we generally will not be subject to federal income tax on income that we distribute as dividends to our shareholders. If we fail to
qualify as a REIT in any taxable year, we will be subject to U.S. federal income tax, including any applicable alternative minimum tax, on our taxable
income at regular corporate income tax rates, and dividends paid to our shareholders would not be deductible by us in computing taxable income. Any
resulting corporate liability could be substantial and could materially and adversely affect our net income and net cash available for distribution to
shareholders. Unless we were entitled to relief under certain Code provisions, we also would be disqualified from re-electing to be taxed as a REIT for the
four taxable years following the year in which we failed to qualify to be taxed as a REIT. It is not possible to state whether in all circumstances we would
be entitled to this statutory relief.
Our TRS is able to engage in activities resulting in income that would not be qualifying income for a REIT. As a result, certain activities of the
Company which occur within our TRS are subject to federal and state income taxes.
Real Estate Investments
Real estate investments primarily represent land and buildings leased to the Company's tenants. Real estate investments that we received in
connection with the Spin-Off were contributed to us at PENN's historical carrying amount. We record the acquisition of real estate at fair value, including
acquisition and closing costs. The cost of properties developed by GLPI includes costs of construction, property taxes, interest and other miscellaneous
costs incurred during the development period until the project is substantially complete and available for occupancy. We consider the period of future
benefit of the asset to determine the appropriate useful lives. Depreciation is computed using a straight-line method over the estimated useful lives of the
buildings and building improvements. If we used a shorter or longer estimated useful life, it could have a material impact on our results of operations.
We continually monitor events and circumstances that could indicate that the carrying amount of our real estate investments may not be
recoverable or realized. The factors considered by the Company in performing these assessments include evaluating whether the tenant is current on their
lease payments, the tenant’s rent coverage ratio, the financial stability of the tenant and its parent company, and any other relevant factors. When indicators
of potential impairment suggest that the carrying value of a real estate investment may not be recoverable, we determine whether the estimated
undiscounted cash flows from the underlying lease exceeds the real estate investments' carrying value. If we determine the estimated undiscounted cash
flows is less than the asset's carrying value then we would recognize an impairment charge equivalent to the amount required to reduce the carrying value
of the asset to its estimated fair value, calculated in accordance with accounting principles generally accepted in the United States ("GAAP"). We group our
real estate investments together by lease, the lowest level for which identifiable cash flows are available, in evaluating impairment. In assessing the
recoverability of the carrying value, the Company must make assumptions regarding future cash flows and other factors. The factors considered by the
Company in performing this assessment include current operating results, market and other applicable trends and residual values, as well as the effect of
obsolescence, demand, competition and other factors. If these estimates or the related assumptions change in the future, the Company may be required to
record an impairment loss.
Results of Operations
The following are the most important factors and trends that contribute or may contribute to our operating performance:
• We have announced or closed numerous transactions in recent years and expect to continue to grow our portfolio by pursuing opportunities to
acquire additional gaming facilities to lease to gaming operators under prudent terms.
•
•
•
Several wholly-owned subsidiaries of PENN lease a substantial number of our properties and account for the majority of our revenue.
The risks related to economic conditions, including uncertainty related to COVID-19, high inflation levels (that have been negatively impacted by
the armed conflict between Russia and Ukraine) and the effect of such conditions on consumer spending for leisure and gaming activities, which
may negatively impact our gaming tenants and operators and the variable rent and certain annual rent escalators we receive from our tenants as
outlined in the long-term triple-net leases with these tenants.
The ability to refinance our significant levels of debt at attractive terms and obtain favorable funding in connection with future business
opportunities.
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•
The fact that the rules and regulations of U.S. federal income taxation are constantly under review by legislators, the IRS and the U.S. Department
of the Treasury. Changes to the tax laws or interpretations thereof, with or without retroactive application, could materially and adversely affect
GLPI's investors or GLPI.
• Our leases contain variable rent that resets on varying schedules depending on the lease. The portion of our cash rents that are variable represented
approximately 11.7% of full year cash rental income for the year ended December 31, 2022. However, given our recent amendment to the PENN
Master Lease and our January 2023 transaction with Bally's, both of which are described more fully in Note 18, we expect this percentage to
decline to approximately 5.3% in 2023.
The consolidated results of operations for the years ended December 31, 2022 and 2021 are summarized below:
Total revenues
Total operating expenses
Income from operations
Total other expenses
Income before income taxes
Income tax expense
Net income
Net income attributable to non-controlling interest in the Operating Partnership
Net income attributable to common shareholders
Year Ended December 31,
2022
2021
(in thousands)
$
$
1,311,685 $
281,770
1,029,915
(309,575)
720,340
17,055
703,285
(18,632)
684,653 $
1,216,351
374,583
841,768
(279,340)
562,428
28,342
534,086
(39)
534,047
The Company has omitted the discussion comparing its operating results for the year ended December 31, 2021 to its operating results for the year
ended December 31, 2020 from its Annual Report on Form 10-K for the year ended December 31, 2022. Readers are directed to Item 7 of the Company's
Annual Report on Form 10-K for the year ended December 31, 2021 for these disclosures.
FFO, AFFO and Adjusted EBITDA
Funds From Operations ("FFO"), Adjusted Funds From Operations ("AFFO") and Adjusted EBITDA are non-GAAP financial measures used by
the Company as performance measures for benchmarking against the Company’s peers and as internal measures of business operating performance, which
is used as a bonus metric. These metrics are presented assuming full conversion of limited partnership units to common shares and therefore before the
income statement impact of non-controlling interests. The Company believes FFO, AFFO and Adjusted EBITDA provide a meaningful perspective of the
underlying operating performance of the Company’s current business. This is especially true since these measures exclude real estate depreciation and we
believe that real estate values fluctuate based on market conditions rather than depreciating in value ratably on a straight-line basis over time.
FFO, AFFO and Adjusted EBITDA are non-GAAP financial measures that are considered supplemental measures for the real estate industry and a
supplement to GAAP measures. The National Association of Real Estate Investment Trusts defines FFO as net income (computed in accordance with
GAAP), excluding (gains) or losses from dispositions of property, net of tax and real estate depreciation. We define AFFO as FFO excluding, as applicable
to the particular period, stock based compensation expense; the amortization of debt issuance costs; bond premiums and original issuance discounts; other
depreciation; amortization of land rights; accretion on investment in leases, financing receivables; non-cash adjustments to financing lease liabilities;
impairment charges; straight-line rent adjustments; (gains) or losses on sales of operations, net of tax; losses on debt extinguishment; and provision for
credit losses, net, reduced by maintenance capital expenditures. Finally, we define Adjusted EBITDA as net income excluding, as applicable to the
particular period, interest, net; income tax expense; real estate depreciation; other depreciation; (gains) or losses from dispositions of property, net of tax;
(gains) or losses on sales of operations, net of tax; stock based compensation expense; straight-line rent adjustments; amortization of land rights; accretion
on Investment in leases, financing receivables; non-cash adjustments to financing lease liabilities; impairment charges; losses on debt extinguishment; and
provision for credit losses, net.
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FFO, AFFO and Adjusted EBITDA are not recognized terms under GAAP. These non-GAAP financial measures: (i) do not represent cash flows
from operations as defined by GAAP; (ii) should not be considered as an alternative to net income as a measure of operating performance or to cash flows
from operating, investing and financing activities; and (iii) are not alternatives to cash flows as a measure of liquidity. In addition, these measures should
not be viewed as an indication of our ability to fund our cash needs, including to make cash distributions to our shareholders, to fund capital improvements,
or to make interest payments on our indebtedness. Investors are also cautioned that FFO, AFFO and Adjusted EBITDA, as presented, may not be
comparable to similarly titled measures reported by other real estate companies, including REITs, due to the fact that not all real estate companies use the
same definitions. Our presentation of these measures does not replace the presentation of our financial results in accordance with GAAP.
The reconciliation of the Company’s net income per GAAP to FFO, AFFO, and Adjusted EBITDA for the years ended December 31, 2022 and
2021 is as follows:
Net income
(Gains) or losses from dispositions of property, net of tax
Real estate depreciation
Funds from operations
Straight-line rent adjustments
Other depreciation
Amortization of land rights
Amortization of debt issuance costs, bond premiums and original issuance discounts
Accretion on investment in leases, financing receivables
Non-cash adjustment to financing lease liabilities
Stock based compensation
Gains on sale of operations, net of tax
Losses on debt extinguishment
Impairment loss on land
Provision for credit losses, net
Capital maintenance expenditures
Adjusted funds from operations
Interest, net
Income tax expense
Capital maintenance expenditures
Amortization of debt issuance costs, bond premiums and original issuance discounts
(2)
(1)
(1)
Adjusted EBITDA
Year Ended December 31,
2022
2021
(in thousands)
$
$
$
$
703,285 $
(52,844)
236,809
887,250 $
(4,294)
1,879
15,859
9,975
(19,442)
483
20,427
—
2,189
3,298
6,898
(159)
924,363 $
304,703
2,418
159
(9,975)
1,221,668 $
534,086
711
230,941
765,738
(3,993)
5,493
15,616
9,929
—
—
16,831
(3,560)
—
—
8,226
(2,270)
812,010
282,840
9,440
2,270
(9,929)
1,096,631
(1)
Such amortization is a non-cash component included in interest, net.
(2)
Current year amounts exclude the non-cash interest expense gross up related to the ground lease for the Maryland Live! property.
Net income, FFO, AFFO, and Adjusted EBITDA were $703.3 million, $887.3 million, $924.4 million and $1,221.7 million, respectively, for the
year ended December 31, 2022. This compared to net income, FFO, AFFO, and Adjusted EBITDA, of $534.1 million, $765.7 million, $812.0 million and
$1,096.6 million, respectively, for the year ended December 31, 2021. The increase in net income was primarily driven by a $205.0 million increase in
income from real estate as explained below. In addition, we had lower operating expenses of $92.8 million that are also discussed below. These benefits
were partially offset by a reduction of $109.7 million in gaming, food, beverage and other revenues resulting from the sale of the operations of Hollywood
Casino Perryville and Hollywood Casino Baton Rouge in 2021, higher interest expense of $26.3 million due to our increased borrowings to partially fund
our recent acquisitions and lower income tax expense of $11.3 million. The income tax variance was due primarily from the sale of the Tropicana Las
Vegas building to Bally's in 2022 as
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compared to income tax expenses on the sale of the operations of Hollywood Casino Perryville and Hollywood Casino Baton Rouge in 2021.
The increases in FFO for the year ended December 31, 2022 were due to the items described above, excluding gains from dispositions of property
and real estate depreciation. The increases in AFFO and Adjusted EBITDA were due to the items described above, less the adjustments mentioned in the
tables above. Adjusted EBITDA also increased as compared to the prior year driven by the explanations above, as well as the adjustments mentioned in the
tables above.
Revenues
Revenues for the years ended December 31, 2022 and 2021 were as follows (in thousands):
Rental income
Income from Investment in leases, financing receivables
Total income from real estate
Gaming, food, beverage and other
Total revenues
Total income from real estate
Year Ended December 31,
2022
1,173,376 $
138,309
1,311,685
—
1,311,685 $
2021
1,106,658 $
—
1,106,658
109,693
1,216,351 $
Variance
66,718
138,309
205,027
(109,693)
95,334
$
$
Percentage
Variance
6.0 %
N/A
18.5 %
(100.0)%
7.8 %
Total income from real estate increased $205.0 million, or 18.5%, for the year ended December 31, 2022, as compared to the year ended
December 31, 2021. Current results benefited from the additions and/or full year impact of the Maryland Live! Lease, the Pennsylvania Live! Master
Lease, the Bally's Master Lease, the Casino Queen Master Lease, the Perryville Lease and the Tropicana Las Vegas Lease which in the aggregate increased
cash rental income by $156.6 million. Current year results also benefited by $12.4 million from full escalations being incurred on the PENN Master Lease,
the Amended Pinnacle Master Lease, the Boyd Master Lease, the Bally's Master Lease and the Belterra Park Lease. The Company also recognized
accretion of $19.4 million on its Investment in leases, financing receivables. The Company also had higher ground rent revenue gross ups of $14.4 million
compared to the prior year due primarily from the additions of the Maryland Live! Lease and the Bally's Master Lease. Finally, the Company had higher
percentage rents of $1.0 million due primarily to strong performance at its tenants' properties upon reopening from the COVID-19 mandated closures,
which negatively impacted the 2020 variable rent resets for certain leases.
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Details of the Company's income from real estate for the year ended December 31, 2022 and December 31, 2021 were as follows (in thousands):
PENN Meadows Lease
15,811
—
8,824
24,635
234,835
71,256
28,030
334,121
Year Ended December 31,
2022
PENN Master Lease
Amended Pinnacle Master
Lease
PENN Morgantown Lease
PENN Perryville Lease
Caesars Master Lease
Horseshoe St. Louis Lease
Boyd Master Lease
Boyd Belterra Lease
Bally's Master Lease
Maryland Live! Lease
Pennsylvania Live!
Master Lease
Casino Queen Master
Lease
Tropicana Las Vegas
Lease
Total
Building base
rent
Land base
rent
Percentage
rent
Total cash
income
Straight line
rent
Ground rent
in revenue
Accretion
on financing
leases
Other
rental
revenue
Total rental
income
$ 285,944 $ 93,969 $
97,423 $
477,336 $ (11,700) $
2,495 $
— $
— $
468,131
—
5,871
62,709
23,161
78,184
2,764
49,598
75,000
41,667
22,122
3,047
1,943
23,729
—
—
—
—
—
3,047
7,814
86,438
23,161
11,785
10,124
100,093
1,894
1,865
6,523
49,598
75,000
41,667
—
—
—
—
—
—
—
—
—
(1,494)
2,289
—
196
8,173
—
—
—
10,162
1,512
—
1,729
—
9,603
8,521
2,103
2,296
—
—
—
—
—
—
—
—
—
—
—
—
—
12,569
1,001
6,873
—
589
—
—
—
—
—
—
—
—
—
—
340,800
27,513
3,047
8,010
98,112
25,264
104,118
6,523
59,201
96,090
49,541
22,564
—
589 $
2,771
1,311,685
22,122
442
—
—
—
2,771
2,771
$ 897,666 $ 210,394 $ 146,266 $ 1,254,326 $
—
—
4,294 $ 33,034 $ 19,442 $
—
Land base rent Percentage rent
Straight line
rent
Ground rent
in revenue
Other rental
revenue
Year Ended December 31, 2021
PENN Master Lease
Amended Pinnacle Master Lease
Penn Meadows Lease
Penn Morgantown
Penn Perryville
Caesars Master Lease
Horseshoe St. Louis Lease
Boyd Master Lease
Boyd Belterra Lease
Bally's Master Lease
Casino Queen Master Lease
Total
$
$
Building base
rent
280,338 $
230,230
15,811
—
2,914
62,514
22,875
76,652
2,709
23,111
9,388
726,542 $
93,969 $
71,256
—
3,000
971
23,729
—
11,785
1,894
—
—
97,814 $
26,779
9,046
—
—
—
—
9,845
1,817
—
5,424
Total cash
income
472,121 $
328,265
24,857
3,000
3,885
86,243
22,875
98,282
6,420
23,111
14,812
206,604 $
150,725 $ 1,083,871 $
8,926 $
(19,346)
2,288
—
120
10,358
544
2,296
(1,211)
—
18
3,993 $
3,013 $
7,430
—
—
—
1,586
—
1,726
—
4,832
—
18,587 $
Total rental income
484,072
316,349
27,340
3,000
4,005
98,187
23,419
102,304
5,209
27,943
14,830
1,106,658
12 $
—
195
—
—
—
—
—
—
—
—
207 $
In accordance with ASC 842, the Company records revenue for the ground lease rent paid by its tenants with an offsetting expense in land
rights and ground lease expense within the consolidated statement of income as the Company has concluded that as the lessee it is the primary obligor
under the ground leases. The Company subleases these ground leases back to its tenants, who are responsible for payment directly to the landlord.
The Company recognizes earnings on Investment in leases, financing receivables, based on the effective yield method using the discount rate
implicit in the leases. The amounts in the table above labeled accretion on financing leases represent earnings recognized in excess of cash received during
the period.
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Gaming, food, beverage and other revenue
Gaming, food, beverage and other revenue decreased by $109.7 million for the year ended December 31, 2022, as compared to the prior year due
to the sale of the operations of Hollywood Casino Perryville on July 1, 2021 and Hollywood Casino Baton Rouge on December 17, 2021.
Operating Expenses
Operating expenses for the years ended December 31, 2022 and 2021 were as follows (in thousands):
Gaming, food, beverage and other
Land rights and ground lease expense
General and administrative
(Gains) losses from disposition of properties
Impairment charge on land
Depreciation
Provision for credit losses, net
Total operating expenses
Gaming, food, beverage and other expense
Year Ended December 31,
2022
2021
Variance
Percentage
Variance
$
$
— $
49,048
51,319
(67,481)
3,298
238,688
6,898
281,770 $
53,039 $
37,390
61,245
(21,751)
—
236,434
8,226
374,583 $
(53,039)
11,658
(9,926)
(45,730)
3,298
2,254
(1,328)
(92,813)
(100.0)%
31.2 %
(16.2)%
210.2 %
N/A
1.0 %
—
(24.8)%
Gaming, food, beverage and other expense decreased by approximately $53.0 million, or 100.0%, for the year ended December 31, 2022, as
compared to the year ended December 31, 2021. As previously discussed, the Company sold the operations of Hollywood Casino Perryville and the
operations of Hollywood Casino Baton Rouge in 2021.
Land rights and ground lease expense
Land rights and ground lease expense includes the amortization of land rights and rent expense related to the Company's long-term ground leases.
Land rights and ground lease expense increased by $11.7 million, or 31.2%, for the year ended December 31, 2022, as compared to the year ended
December 31, 2021, primarily from higher rent expense due to the acquisition of the real estate of Maryland Live! Hotel & Casino and Pittsburgh Live!
Casino, which both have ground leases, higher land right amortization due to the acquisition of Tropicana Evansville on June 3, 2021, and a $2.7 million
accelerated write-off due to a partial donation of leased land which occurred during 2022.
General and administrative expense
General and administrative expenses include items such as compensation costs (including stock-based compensation awards), professional
services and costs associated with development activities. General and administrative expenses decreased by $9.9 million, or 16.2%, for the year ended
December 31, 2022, as compared to the year ended December 31, 2021. The reason for the decline was primarily due to the sale of the operations of
Hollywood Casino Perryville on July 1, 2021 and Hollywood Casino Baton Rouge on December 17, 2021 which was partially offset by higher bonus
expense and stock based compensation charges due to improved performance and higher valuations on the Company's equity awards as well as transaction
related costs that did not qualify for capitalization.
Gains from dispositions of property
Gains from dispositions of property totaled $67.5 million and $21.8 million for the year ended December 31, 2022 and December 31, 2021,
respectively. The year ended December 31, 2022 included a pre-tax gain of $67.4 million on the sale of the Tropicana Las Vegas building to Bally's. The
year ended December 31, 2021 included the sale of the operations of Hollywood Casino Perryville and Hollywood Casino Baton Rouge that resulted in a
combined pre-tax gain of $22.4 million.
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Impairment charge on land
During 2022, the Company entered into an agreement and completed the sale of excess land for approximately $3.5 million that had a carrying
value of $6.8 million and as such the Company recorded an impairment charge for the year ended December 31, 2022.
Depreciation expense
Depreciation expense increased by $2.3 million, or 1.0%, to $238.7 million for the year ended December 31, 2022 as compared to the year ended
December 31, 2021, primarily due to the Company's acquisitions over the past year.
Provision for credit losses, net
For the year ended December 31, 2022, the Company recorded a $6.9 million provision for credit losses on the Maryland Live! Lease and
Pennsylvania Live! Master Lease as compared to the year ended December 31, 2021 when the Company recorded a $12.2 million provision for credit
losses on the Maryland Live! Lease. Additionally, the Company recorded a $4 million recovery during the year ended December 31, 2021 for a payment
received from Casino Queen in full satisfaction of a loan that was previously fully impaired. The Company recorded an initial allowance of $32.3 million
on the Pennsylvania Live! Master Lease which was originated on March 1, 2022. During the year ended December 31, 2022, the Company received an
updated earnings forecast from its tenant for the properties comprising both the Maryland Live! Lease and the Pennsylvania Live! Master Lease. This
resulted in improved rent coverage ratios in its reserve calculation which led to a reduction in the required reserves for both financing receivables. See Note
7 for additional information.
Other income (expenses)
Other income (expenses) for the years ended December 31, 2022 and 2021 were as follows (in thousands):
Interest expense
Interest income
Insurance gain
Losses on debt extinguishment
Total other expenses
Interest expense
Year Ended December 31,
2022
2021
Variance
Percentage
Variance
$
$
(309,291) $
1,905
—
(2,189)
(309,575) $
(283,037) $
197
3,500
—
(279,340) $
(26,254)
1,708
(3,500)
(2,189)
(30,235)
9.3 %
867.0 %
(100.0)%
NA
10.8 %
For the year ended December 31, 2022, the Company's interest expense increased by $26.3 million as compared to the corresponding period in the
prior year. The increase was due to the issuance of additional unsecured senior notes that partially funded our recent acquisitions. See Note 10 for
additional information.
Insurance gain
For the year ended December 31, 2021, the Company recognized insurance gains of $3.5 million due to an insurance claim related to the
temporary closures of Hollywood Casino Perryville and Hollywood Casino Baton Rouge in 2020 related to COVID-19.
Taxes
Our income tax expense decreased $11.3 million for the year ended December 31, 2022 as compared to the year ended December 31, 2021.
During the year ended December 31, 2022, we had income tax expense of approximately $17.1 million, compared to income tax expense of $28.3 million
during the year ended December 31, 2021. The reason for the decrease was primarily due to the taxes incurred on the gain on the sale of the building at
Tropicana Las Vegas in 2022 compared to the taxes incurred on the sale of the operations of Hollywood Casino Perryville and Hollywood Casino Baton
Rouge in 2021.
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Net income attributable to noncontrolling interest in the Operating Partnership
As partial consideration for the Cordish transactions related to the Maryland Live! Lease and Pennsylvania Live! Master Lease, the Company's
operating partnership issued OP Units to affiliates of Cordish. OP Units are exchangeable for common shares of the Company on a one-for-one basis,
subject to certain terms and conditions. The operating partnership is a variable interest entity ("VIE") in which the Company is the primary beneficiary
because it has the power to direct the activities of the VIE that most significantly impact the partnership's economic performance and has the obligation to
absorb losses of the VIE that could be potentially significant to the VIE and the right to receive benefits from the VIE that could be significant to the VIE.
Therefore, the Company consolidates the accounts of the operating partnership, and reflects the third party ownership in this entity as a noncontrolling
interest in the Consolidated Balance Sheets and allocates the proportion of net income to the noncontrolling interests on the Consolidated Statements of
Income.
Liquidity and Capital Resources
Our primary sources of liquidity and capital resources are cash flow from operations, borrowings from banks, and proceeds from the issuance of
debt and equity securities.
Net cash provided by operating activities was $920.1 million and $803.8 million during the years ended December 31, 2022 and 2021,
respectively. The increase in net cash provided by operating activities of $116.3 million for the year ended December 31, 2022 as compared to the prior
year was primarily due to an increase in cash receipts from customers of $60.9 million along with decreases in cash paid to employees of $16.4 million,
cash paid for operating expenses of $57.3 million partially offset by an increase in cash paid for interest and cash paid for taxes of $12.6 million and $3.4
million, respectively. The increase in cash receipts collected from our customers for the year ended December 31, 2022, as compared to the corresponding
period in the prior year, was due to the additions of the Maryland Live! Lease, the Pennsylvania Live! Master Lease, the Casino Queen Master Lease, the
Bally's Master Lease, and the Perryville Lease and full escalations being incurred on the Amended Pinnacle Master Lease, the Boyd Master Lease, the
Belterra Park Lease and the PENN Master Lease less the impact from the sale of the operations of Hollywood Casino Perryville and Hollywood Casino
Baton Rouge which also led to the decline in cash paid for operating expenses.
Investing activities used net cash of $354.5 million and $1,030.8 million during the years ended December 31, 2022 and 2021, respectively. Net
cash used in investing activities during the year ended December 31, 2022 consisted primarily of $129.1 million for the acquisition of the real estate assets
contained within the Pennsylvania Live! Master Lease which was accounted for as an Investment in lease, financing receivables, $200 million for a deposit
payment for our recently announced transaction with Bally's, $150.1 million for the acquisition of the real estate assets of Bally's Black Hawk, CO and
Rock Island, IL properties which were added to the Bally's Master Lease, and capital expenditures equal to $24.0 million, partially offset by the proceeds of
$145.2 million from the sale of the Company's building at Tropicana Las Vegas and the sale of excess land for $3.5 million. Net cash used in investing
activities during the year ended December 31, 2021 consisted of $487.5 million for the acquisition of real estate assets in the Bally's acquisitions and
$592.2 million for the acquisition of the real estate assets of Maryland Live! which was accounted for as an investment in lease, financing receivable. The
Company also incurred capital expenditures of $16.2 million, partially offset by the net proceeds received for the sale of the operations of Hollywood
Casino Perryville to PENN of $30.8 million, proceeds from the sale of the operations of Hollywood Casino Baton Rouge to Casino Queen of $28.2 million,
a loan loss recovery of $4.0 million, and proceeds from the sale of property of $2.1 million.
Financing activities used net cash of $1,051.2 million during the year ended December 31, 2022 and provided net cash of $443.1 million during
the year ended December 31, 2021. Net cash used in financing activities for the year ended December 31, 2022 was driven by the repayment of long term
debt of $1,271.1 million, dividend payments of $770.9 million, non-controlling interest distributions of $20.7 million, financing costs of $11.9 million and
taxes paid related to shares withheld for tax purposes on restricted stock award vestings of $11.9 million. These items were partially offset by $424.0
million of proceeds from the issuance of long-term debt and $611.3 million of net proceeds from the issuance of common stock. Net cash provided by
financing activities for the year ended December 31, 2021 was driven by $795.0 million of proceeds from the issuance of long-term debt and $662.3
million of net proceeds from the issuance of common stock, partially offset by the repayment of long term debt of $363.4 million related to the Maryland
Live! transaction, dividend payments of $633.9 million and taxes paid related to shares withheld for tax purposes on restricted stock award vestings of $9.9
million.
Capital Expenditures
Capital expenditures are accounted for as either capital project or capital maintenance (replacement) expenditures. Capital project expenditures are
for fixed asset additions that expand an existing facility or create a new facility. The cost of properties developed by the Company include costs of
construction, property taxes, interest and other miscellaneous costs
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incurred during the development period until the project is substantially complete and available for occupancy. Capital maintenance expenditures are
expenditures to replace existing fixed assets with a useful life greater than one year that are obsolete, worn out or no longer cost effective to repair.
During the years ended December 31, 2022 and 2021 we spent approximately $0.2 million and $2.3 million respectively, for capital maintenance
expenditures. Our tenants are responsible for capital maintenance expenditures at our leased properties. However, during the years ended December 31,
2022 and 2021, we incurred $23.9 million and $5.2 million, respectively, on capital project expenditures related to a landside development project at
Hollywood Casino Baton Rouge. Additionally, for the year ended December 31, 2021, $8.7 million was incurred on capital project expenditures related to
an expansion at Casino Queen.
Debt
Term Loan Credit Agreement
On September 2, 2022, GLP Capital entered into a term loan credit agreement (the “Term Loan Credit Agreement”) with Wells Fargo Bank,
National Association, as administrative agent (“Term Loan Agent”), and the other agents and lenders party thereto from time to time, providing for a
$600 million delayed draw credit facility with a maturity date of September 2, 2027 (the “Term Loan Credit Facility”). The Term Loan Credit Facility is
guaranteed by GLPI.
The availability of loans under the Term Loan Credit Facility is subject to customary conditions, including pro forma compliance with financial
covenants, and the receipt by Term Loan Agent of a conditional guarantee of the Term Loan Credit Facility by Bally’s on a secondary basis, subject to
enforcement of all remedies against GLP Capital, GLPI and all sources other than Bally’s. The loans under the Term Loan Credit Facility may be used
solely to finance a portion of the purchase price of the acquisition of one or more specified properties of Bally’s in one or a series of related transactions
(the “Acquisition”) and to pay fees, costs and expenses incurred in connection therewith. The Company drew down the entire $600 million Term Loan
Credit Facility on January 3, 2023 in connection with the closing of Bally's Biloxi and Bally's Tiverton.
Subject to customary conditions, including pro forma compliance with financial covenants, GLP Capital can obtain additional term loan
commitments and incur incremental term loans under the Term Loan Credit Agreement, so long as the aggregate principal amount of all term loans
outstanding under the Term Loan Credit Facility does not exceed $1.2 billion plus up to $60 million of transaction fees and costs incurred in connection
with the Acquisition. There is currently no commitment in respect of such incremental loans and commitments.
Interest Rate and Fees
The interest rates per annum applicable to loans under the Term Loan Credit Facility are, at GLP Capital's option, equal to either a SOFR-based
rate or a base rate plus an applicable margin, which ranges from 0.85% to 1.7% per annum for SOFR loans and 0.0% to 0.7% per annum for base rate
loans, in each case, depending on the credit ratings assigned to the Term Loan Credit Facility. The current applicable margin is 1.30% for SOFR loans and
0.30% for base rate loans. In addition, GLP Capital will pay a commitment fee on the unused commitments under the Term Loan Credit Facility at a rate
that ranges from 0.125% to 0.3% per annum, depending on the credit ratings assigned to the Credit Facility from time to time. The current commitment fee
rate is 0.25%.
Amortization and Prepayments
The Term Loan Credit Facility is not subject to interim amortization. GLP Capital is required to prepay outstanding term loans with 100% of the
net cash proceeds from the issuance of other debt that is unconditionally guaranteed by GLPI and conditionally guaranteed by Bally’s (“Alternative
Acquisition Debt”) that is received by GLPI, GLP Capital or any of their subsidiaries after the funding date of the Term Loan Facility (other than any
incremental term loans under the Term Loan Credit Agreement and loans under the Bridge Revolving Facility (as defined below)) except to the extent such
net cash proceeds are applied to repaying outstanding loans under the Bridge Revolving Facility. GLP Capital is not otherwise required to repay any loans
under the Term Loan Credit Facility prior to maturity. GLP Capital may prepay all or any portion of the loans under the Term Loan Credit Facility prior to
maturity without premium or penalty, subject to reimbursement of any SOFR breakage costs of the lenders, and may reborrow loans that it has repaid.
Unused commitments under the Term Loan Credit Facility automatically terminate on August 31, 2023.
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Certain Covenants and Events of Default
The Term Loan Credit Facility contains customary covenants that, among other things, restrict, subject to certain exceptions, the ability of GLPI
and its subsidiaries, including GLP Capital, to grant liens on their assets, incur indebtedness, sell assets, engage in acquisitions, mergers or consolidations,
or pay certain dividends and make other restricted payments. The financial covenants include the following, which are measured quarterly on a trailing
four-quarter basis: (i) maximum total debt to total asset value ratio, (ii) maximum senior secured debt to total asset value ratio, (iii) maximum ratio of
certain recourse debt to unencumbered asset value, and (iv) minimum fixed charge coverage ratio. GLPI is required to maintain its status as a REIT and is
permitted to pay dividends to its shareholders as may be required in order to maintain REIT status. GLPI is also permitted to make other dividends and
distributions, subject to pro forma compliance with the financial covenants and the absence of defaults. The Term Loan Credit Facility also contains certain
customary affirmative covenants and events of default. The occurrence and continuance of an event of default, which includes, among others, nonpayment
of principal or interest, material inaccuracy of representations and failure to comply with covenants, will enable the lenders to accelerate the loans and
terminate the commitments thereunder.
Senior Unsecured Credit Facility
The Company, through GLP Capital, historically had access to a senior unsecured credit facility (the "Amended Credit
Facility") consisting of a $1,175 million revolving credit facility and a $424 million Term Loan A-2 facility. The Amended Credit Facility was scheduled to
mature on May 21, 2023. On May 13, 2022, GLP Capital terminated its Amended Credit Facility and entered into a credit agreement (the "Credit
Agreement") providing for the Initial Revolving Credit Facility maturing in May 2026, plus two six-month extensions at GLP Capital's option. GLP Capital
was the primary obligor under the Amended Credit Facility, which was guaranteed by GLPI and GLP Capital is the primary obligor under the Credit
Agreement, which is guaranteed by GLPI. The Company recorded a debt extinguishment loss of $2.2 million in connection with this transaction.
On September 2, 2022, GLP Capital entered into Amendment No. 1 (the “Amendment”) to the Credit Agreement (as amended, the "Amended
Credit Agreement") among GLP Capital, Wells Fargo Bank, National Association, as administrative agent (“Agent”), and the several banks and other
financial institutions or entities party thereto. Pursuant to the Credit Agreement, as amended by the Amendment, GLP Capital has the right, at any time
until December 31, 2024, to elect to re-allocate up to $700 million in existing revolving commitments under the Credit Agreement to a new revolving
credit facility (the “Bridge Revolving Facility” and, collectively with the Initial Revolving Credit Facility, the "Revolver").
Loans under the Bridge Revolving Facility are subject to 1% amortization per annum. Amounts repaid under the Bridge Revolving Facility cannot
be reborrowed and the corresponding commitments are automatically re-allocated to the existing revolving facility under the Amended Credit Agreement.
GLP Capital is required to prepay the loans under the Bridge Revolving Facility with 100% of the net cash proceeds from the issuance of Alternative
Acquisition Debt that is received by GLPI, GLP Capital or any of their subsidiaries (other than any term loans under the Term Loan Credit Agreement and
any loans under the Bridge Revolving Facility). Any outstanding commitments under the Bridge Revolving Facility that have not been borrowed by
December 31, 2024 are automatically re-allocated to the existing revolving facility under the Credit Agreement.
GLP Capital's ability to borrow under the Bridge Revolving Facility is subject to certain conditions including pro forma compliance with GLP
Capital's financial covenants, as well as the receipt by Agent of a conditional guarantee of the loans under the Bridge Revolving Facility by Bally’s on a
secondary basis, subject to enforcement of all remedies against GLP Capital, GLPI and all sources other than Bally’s. Loans under the Bridge Revolving
Facility will not be treated pro rata with loans under the existing revolving credit facility.
At December 31, 2022, no amounts were outstanding under the Amended Credit Agreement. Additionally, at December 31, 2022, the Company
was contingently obligated under letters of credit issued pursuant to the Credit Agreement with face amounts aggregating approximately $0.4 million,
resulting in $1,749.6 million of available borrowing capacity under the Amended Credit Agreement as of December 31, 2022.
The interest rates payable on the loans borrowed under the Revolver are, at GLP Capital's option, equal to either a SOFR based rate or a base rate
plus an applicable margin, which ranges from 0.725% to 1.40% per annum for SOFR loans and 0.0% to 0.4% per annum for base rate loans, in each case,
depending on the credit ratings assigned to the Credit Agreement. The current applicable margin is 1.05% for SOFR loans and 0.05% for base rate loans.
Notwithstanding the foregoing, in no event shall the base rate be less than 1.00%. In addition, GLP Capital will pay a facility fee on the commitments
under the revolving facility, regardless of usage, at a rate that ranges from 0.125% to 0.3% per annum, depending on the credit rating assigned to the Credit
Agreement from time to time. The current facility fee rate is 0.25%. The Credit Agreement is not subject
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to interim amortization except with respect to the Bridge Revolving Facility. GLP Capital is not required to repay any loans under the Credit Agreement
prior to maturity except as set forth above with respect to the Bridge Revolving Facility. GLP Capital may prepay all or any portion of the loans under the
Credit Agreement prior to maturity without premium or penalty, subject to reimbursement of any SOFR breakage costs of the lenders and may reborrow
loans that it has repaid.
The Amended Credit Facility contains customary covenants that, among other things, restrict, subject to certain exceptions, the ability of GLPI
and its subsidiaries to grant liens on their assets, incur indebtedness, sell assets, make investments, engage in acquisitions, mergers or consolidations or pay
certain dividends and make other restricted payments. The Amended Credit Facility includes the following financial covenants, which are measured
quarterly on a trailing four-quarter basis: a maximum total debt to total asset value ratio, a maximum senior secured debt to total asset value ratio, a
maximum ratio of certain recourse debt to unencumbered asset value and a minimum fixed charge coverage ratio. In addition, GLPI is required to maintain
a minimum tangible net worth and its status as a REIT. GLPI is permitted to pay dividends to its shareholders as may be required in order to maintain REIT
status, subject to the absence of payment or bankruptcy defaults. GLPI is also permitted to make other dividends and distributions subject to pro forma
compliance with the financial covenants and the absence of defaults. The Amended Credit Facility also contains certain customary affirmative covenants
and events of default, including the occurrence of a change of control and termination of the PENN Master Lease (subject to certain replacement rights).
The occurrence and continuance of an event of default under the Amended Credit Facility will enable the lenders under the Amended Credit Facility to
accelerate the loans and terminate the commitments thereunder. At December 31, 2022, the Company was in compliance with all required financial
covenants under the Amended Credit Facility.
Senior Unsecured Notes
At December 31, 2022, the Company had an outstanding balance of $6,175.0 million of senior unsecured notes (the "Senior Notes").
On December 13, 2021, the Company issued $800 million of 3.25% senior unsecured notes due January 2032 at an issue price equal to 99.376%
of the principal amount. The proceeds were used to partially finance the Company's acquisition of certain real estate assets in the Cordish transaction.
In the first quarter of 2020, the Company redeemed all $215.2 million aggregate principal amount of the Company’s outstanding 4.875% senior
unsecured notes due in November 2020 and all $400 million aggregate principal amount of the Company’s outstanding 4.375% senior unsecured notes due
in April 2021, incurring a loss on the early extinguishment of debt related to the redemption of $17.3 million, primarily for call premium charges and debt
issuance write-offs.
On June 25, 2020, the Company issued $500 million of 4.00% senior unsecured notes due January 2031 at an issue price equal to 98.827% of the
principal amount to repay indebtedness under its Revolver. On August 18, 2020, the Company issued an additional $200 million of 4.00% senior unsecured
notes due January 2031 at an issue price equal to 103.824% of the principal amount to repay Term Loan A-1 indebtedness, incurring a loss on the early
extinguishment of debt of $0.8 million, related to debt issuance write-offs. These bond offerings extended the maturities of our long-term debt.
The Company may redeem the Senior Notes of any series at any time, and from time to time, at a redemption price of 100% of the principal
amount of the Senior Notes redeemed, plus a "make-whole" redemption premium described in the indenture governing the Senior Notes, together with
accrued and unpaid interest to, but not including, the redemption date, except that if Senior Notes of a series are redeemed 90 or fewer days prior to their
maturity, the redemption price will be 100% of the principal amount of the Senior Notes redeemed, together with accrued and unpaid interest to, but not
including, the redemption date. If GLPI experiences a change of control accompanied by a decline in the credit rating of the Senior Notes of a particular
series, the Company will be required to give holders of the Senior Notes of such series the opportunity to sell their Senior Notes of such series at a price
equal to 101% of the principal amount of the Senior Notes of such series, together with accrued and unpaid interest to, but not including, the repurchase
date. The Senior Notes also are subject to mandatory redemption requirements imposed by gaming laws and regulations.
The Senior Notes were issued by GLP Capital and GLP Financing II, Inc. (the "Issuers"), two consolidated subsidiaries of GLPI, and are
guaranteed on a senior unsecured basis by GLPI. The guarantees of GLPI are full and unconditional. The Senior Notes are the Issuers' senior unsecured
obligations and rank pari passu in right of payment with all of the Issuers' senior indebtedness, including the Amended Credit Facility, and senior in right
of payment to all of the Issuers' subordinated indebtedness, without giving effect to collateral arrangements. GLPI is not subject to any material or
significant restrictions on its ability to obtain funds from its subsidiaries through dividends or loans or to transfer assets from such subsidiaries, except as
provided by applicable law and the covenants listed below.
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The Senior Notes contain covenants limiting the Company’s ability to: incur additional debt and use its assets to secure debt; merge or consolidate
with another company; and make certain amendments to the PENN Master Lease. The Senior Notes also require the Company to maintain a specified ratio
of unencumbered assets to unsecured debt. These covenants are subject to a number of important and significant limitations, qualifications and exceptions.
GLPI owns all of the assets of GLP Capital and conducts all of its operations through the operating partnership. Based on the amendments to Rule
3-10 of Regulation S-X that the SEC released on January 4, 2021, we note that since GLPI fully and unconditionally guarantees the debt securities of the
Issuers and consolidates both Issuers, we are not required to provide separate financial statements for the Issuers and GLPI since they are consolidated into
GLPI and the GLPI guarantee is "full and unconditional".
Furthermore, as permitted under Rule 13-01(a)(4)(vi), we excluded the summarized financial information for the Issuers because the assets,
liabilities and results of operations of the Issuers and GLPI are not materially different than the corresponding amounts in GLPI's consolidated financial
statements and we believe such summarized financial information would be repetitive and would not provide incremental value to investors.
At December 31, 2022, the Company was in compliance with all required financial covenants under its Senior Notes.
Distribution Requirements
We generally must distribute annually at least 90% of our REIT taxable income, determined without regard to the dividends paid deduction and
excluding any net capital gains, in order to qualify to be taxed as a REIT (assuming that certain other requirements are also satisfied) so that U.S. federal
corporate income tax does not apply to earnings that we distribute. Such distributions generally can be made with cash and/or a combination of cash and
Company common stock if certain requirements are met. To the extent that we satisfy this distribution requirement and qualify for taxation as a REIT but
distribute less than 100% of our REIT taxable income, determined without regard to the dividends paid deduction and including any net capital gains, we
will be subject to U.S. federal corporate income tax on our undistributed net taxable income. In addition, we will be subject to a 4% nondeductible excise
tax if the actual amount that we distribute to our shareholders in a calendar year is less than a minimum amount specified under U.S. federal income tax
laws. We intend to make distributions to our shareholders to comply with the REIT requirements of the Code. To the extent any of the Company's taxable
income was not previously distributed, the Company will make a dividend declaration pursuant to Section 858(a)(1) of the Code, allowing the Company to
treat certain dividends that are to be distributed after the close of a taxable year as having been paid during the taxable year.
Outlook
Based on our current level of operations and anticipated earnings, we believe that cash generated from operations and cash on hand, together with
amounts available under our Amended Credit Agreement of $1.75 billion, will be adequate to meet our anticipated debt service requirements, capital
expenditures, working capital needs and dividend requirements.
In late December 2022, the Company refreshed its ATM capacity to $1 billion (the "2022 ATM Program"). As of December 31, 2022, the
Company had $1 billion remaining for issuance under the 2022 ATM Program. Additionally, the Company also entered into the Term Loan Credit
Agreement for up to $600 million in funding which was accessed in connection with the January 3, 2023 acquisition of the real property assets of Bally's
Tiverton and Bally's Biloxi.
In August 2022, the Company entered into a forward sale agreement (the "August 2022 Forward Sale Agreement"), for up to $105 million that
will require settlement by August 19, 2023. No amounts have been or will be recorded on the Company's balance sheet with respect to the August 2022
Forward Sale Agreement until settlement. The Company settled the August 2022 Forward Sale Agreement in February 2023 and utilized the net proceeds
of $64.6 million to partially fund the redemption of the $500 million, 5.375% Notes that were redeemed on February 12, 2023.
We expect the majority of our future growth to come from acquisitions of gaming and other properties to lease to third parties. If we consummate
significant acquisitions in the future, our cash requirements may increase significantly and we would likely need to raise additional proceeds through a
combination of either common equity (including under our 2022 ATM Program), issuance of additional OP Units, and/or debt offerings. In addition, as
described above, the Company redeemed its 5.375% Notes. Our future operating performance and our ability to service or refinance our debt will be
subject to future economic conditions and to financial, business and other factors, many of which are beyond our control. See "Risk Factors-Risks Related
to Our Capital Structure" of this Annual Report on Form 10-K for a discussion of the risk related to our capital structure.
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ITEM 7A. QUANTITATIVE AND QUALITATIVE DISCLOSURES ABOUT MARKET RISK
We face market risk exposure in the form of interest rate risk. These market risks arise from our debt obligations. We have no international
operations. Our exposure to foreign currency fluctuations is not significant to our financial condition or results of operations.
GLPI’s primary market risk exposure is interest rate risk with respect to its indebtedness of $6,175.6 million at December 31, 2022. Furthermore,
$6,175.0 million of our obligations are the senior unsecured notes that have fixed interest rates with maturity dates ranging from approximately one year to
nine years. An increase in interest rates could make the financing of any acquisition by GLPI more costly, as well as increase the costs of its variable rate
debt obligations. Rising interest rates could also limit GLPI’s ability to refinance its debt when it matures or cause GLPI to pay higher interest rates upon
refinancing and increase interest expense on refinanced indebtedness. GLPI may manage, or hedge, interest rate risks related to its borrowings by means of
interest rate swap agreements. GLPI also expects to manage its exposure to interest rate risk by maintaining a mix of fixed and variable rates for its
indebtedness. However, the provisions of the Code applicable to REITs substantially limit GLPI’s ability to hedge its assets and liabilities.
The table below provides information at December 31, 2022 about our financial instruments that are sensitive to changes in interest rates. For debt
obligations, the table presents notional amounts maturing in each fiscal year and the related weighted-average interest rates by maturity dates. Notional
amounts are used to calculate the contractual payments to be exchanged by maturity date and the weighted-average interest rates are based on implied
forward SOFR rates at December 31, 2022.
1/01/23-
12/31/23
1/01/24-
12/31/24
1/01/25-
12/31/25
1/01/26-
12/31/26
1/01/27-
12/31/27
Thereafter
Total
Fair Value at
12/31/2022
(in thousands)
$
$
500,000
5.38 %
—
$
$
400,000
3.35 %
—
$
$
850,000
5.25 %
—
$
$
975,000
5.38 %
—
$
$
—
— %
—
$
$
3,450,000
$
6,175,000
$
5,715,963
4.36 %
—
$
—
$
—
Long-term debt:
Fixed rate
Average interest rate
Variable rate
Average interest rate
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ITEM 8. FINANCIAL STATEMENTS AND SUPPLEMENTARY DATA
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the shareholders and the Board of Directors of
Gaming and Leisure Properties, Inc. and subsidiaries
Opinion on the Financial Statements
We have audited the accompanying consolidated balance sheets of Gaming and Leisure Properties, Inc. and subsidiaries (the "Company") as of
December 31, 2022 and 2021, the related consolidated statements of income, changes in equity, and cash flows, for each of the three years in the period
ended December 31, 2022, and the related notes and the schedule listed in the Index at Item 15 (collectively referred to as the "financial statements"). In
our opinion, the financial statements present fairly, in all material respects, the financial position of the Company as of December 31, 2022 and 2021, and
the results of its operations and its cash flows for each of the three years in the period ended December 31, 2022, in conformity with accounting principles
generally accepted in the United States of America.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the Company's
internal control over financial reporting as of December 31, 2022, based on criteria established in Internal Control -- Integrated Framework (2013) issued
by the Committee of Sponsoring Organizations of the Treadway Commission and our report dated February 23, 2023, expressed an unqualified opinion on
the Company's internal control over financial reporting.
Basis for Opinion
These financial statements are the responsibility of the Company's management. Our responsibility is to express an opinion on the Company's financial
statements based on our audits. We are a public accounting firm registered with the PCAOB and are required to be independent with respect to the
Company in accordance with the U.S. federal securities laws and the applicable rules and regulations of the Securities and Exchange Commission and the
PCAOB.
We conducted our audits in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether the financial statements are free of material misstatement, whether due to error or fraud. Our audits included performing
procedures to assess the risks of material misstatement of the financial statements, whether due to error or fraud, and performing procedures that respond to
those risks. Such procedures included examining, on a test basis, evidence regarding the amounts and disclosures in the financial statements. Our audits
also included evaluating the accounting principles used and significant estimates made by management, as well as evaluating the overall presentation of the
financial statements. We believe that our audits provide a reasonable basis for our opinion.
Critical Audit Matters
The critical audit matters communicated below are matters arising from the current-period audit of the financial statements that were communicated or
required to be communicated to the audit committee and that (1) relate to accounts or disclosures that are material to the financial statements and (2)
involved our especially challenging, subjective, or complex judgments. The communication of critical audit matters does not alter in any way our opinion
on the financial statements, taken as a whole, and we are not, by communicating the critical audit matters below, providing separate opinions on the critical
audit matters or on the accounts or disclosures to which they relate.
Lease Classification - Lease Term - See Note 12 to the Consolidated Financial Statements
Critical Audit Matter Description
The Company performs a lease classification test upon the entry into any new tenant lease or lease modification to determine if the lease will be accounted
for as an operating, sales-type lease, or direct financing lease. The accounting guidance under ASC 842 is complex and requires the use of judgments and
assumptions by management to determine the proper accounting treatment of a lease. The lease classification tests, and the resulting calculations require
subjective judgments, such as determining the likelihood a tenant will exercise all renewal options, in order to determine the lease term. A slight change in
an estimate or judgment can result in a material difference in the financial statement presentation.
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Given the significant judgments made by management to determine the expected lease term, we performed audit procedures to assess the reasonableness of
such judgments, which required a high degree of auditor judgment.
How the Critical Audit Matter Was Addressed in the Audit
Our audit procedures related to the judgments surrounding the determination of the lease term for any new or modified lease included the following, among
others:
• We tested the effectiveness of the controls over management’s assessment of the likelihood a tenant would exercise all renewal options.
• We evaluated the significant judgments made by management to determine the expected lease term by:
◦
◦
Assessing the significance of the leased assets to the tenant’s operations by examining available information, including the tenant’s
financial statements, if available.
Evaluating the Company’s historical pattern of tenant lease modifications by examining both confirming and contradictory evidence.
◦ Obtaining lease agreements to examine material lease provisions considered by management in their analysis.
Allowance for Credit Losses – Refer to Notes 2 and 7 to the Consolidated Financial Statements
Critical Audit Matter Description
The Company follows ASC 326 “Credit Losses” (“ASC 326”), which requires that the Company measures and record current expected credit losses
(“CECL”), the scope of which includes Investments in leases - financing receivables. The Company elected to use an econometric default and loss rate
model to estimate the CECL allowance. This model requires the Company to calculate and input lease and property-specific credit and performance metrics
which in conjunction with forward looking economic forecasts, project estimated credit losses over the life of the lease. A CECL allowance is recorded
based on the expected loss rate multiplied by the outstanding investment in lease balance.
Expected losses within the Company’s cash flows are determined by estimating the probability of default ("PD") and loss given default ("LGD") of the
Company’s Investment in leases - financing receivables, net. The PD and LGD are estimated during the initial term of the lease. The PD and LGD
estimates for the lease term were developed using current financial condition forecasts. The PD and LGD predictive model uses the average historical
default rates and historical loss rates, respectively, dating back to 1998 that have similar credit profiles or characteristics to the real estate underlying the
Company's financing receivables. The Company monitors the credit risk related to its financing receivables by obtaining the rent coverage ratios on a
periodic basis. The Company also monitors legislative changes to assess whether it would have an impact on the underlying performance of its tenant.
The determination of the Company’s CECL allowance, including the forward looking economic forecasts, represents a critical audit matter due to the
significant level of subjectivity and judgement required by management to estimate the allowance for credit losses. Auditing management’s allowance for
credit losses requires a high degree of auditor judgment and increased extent of effort including the need to involve our credit specialist.
How the Critical Audit Matter Was Addressed in the Audit
Our audit procedures related to the allowance for credit losses for the Company’s investments in financing leases included the following, among others:
• We tested the effectiveness of controls implemented by the Company related to the estimation of the allowance for credit losses, including the
judgements involved in the determination of the macroeconomic factors applied to expected loss rate.
• We tested the inputs used in the calculation to determine the PD and LGD of the tenant by agreeing lease and property specific credit and
performance metrics to independent data.
• With the assistance of our credit specialist, we evaluated the reasonableness of the methodology, appropriateness of the model and significant
assumptions used by management to estimate the PD and LGD.
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• We evaluated management’s expected loss rate by performing a peer benchmarking analysis.
/s/ Deloitte & Touche
New York, New York
February 23, 2023
We have served as the Company's auditor since 2016.
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Gaming and Leisure Properties, Inc. and Subsidiaries
Consolidated Balance Sheets
(in thousands, except share data)
Table of Contents
Assets
Real estate investments, net
Investment in leases, financing receivables, net
Assets held for sale
Right-of-use assets and land rights, net
Cash and cash equivalents
Other assets
Total assets
Liabilities
Accounts payable, dividend payable and accrued expenses
Accrued interest
Accrued salaries and wages
Operating lease liabilities
Financing lease liabilities
Long-term debt, net of unamortized debt issuance costs, bond premiums and original issuance discounts
Deferred rental revenue
Other liabilities
Total liabilities
Commitments and Contingencies (Note 11)
Equity
December 31, 2022
December 31, 2021
$
$
$
7,707,935 $
1,903,195
—
834,067
239,083
246,106
10,930,386 $
6,561 $
82,297
6,742
181,965
53,792
6,128,468
324,774
27,691
6,812,290
7,777,551
1,201,670
77,728
851,819
724,595
57,086
10,690,449
63,543
71,810
6,798
183,945
53,309
6,552,372
329,068
39,464
7,300,309
Preferred stock ($.01 par value, 50,000,000 shares authorized, no shares issued or outstanding at December 31,
2022 and December 31, 2021)
Common stock ($.01 par value, 500,000,000 shares authorized, 260,727,030 and 247,206,937 shares issued and
outstanding at December 31, 2022 and December 31, 2021, respectively)
Additional paid-in capital
Accumulated deficit
Total equity attributable to Gaming and Leisure Properties
Non-controlling interests in GLPI's Operating Partnership (7,366,683 units and 4,348,774 units outstanding at
December 31, 2022 and December 31, 2021, respectively
Total equity
Total liabilities and equity
—
—
2,607
5,573,567
(1,798,216)
3,777,958
340,138
4,118,096
10,930,386 $
$
2,472
4,953,943
(1,771,402)
3,185,013
205,127
3,390,140
10,690,449
See accompanying Notes to the Consolidated Financial Statements.
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Gaming and Leisure Properties, Inc. and Subsidiaries
Consolidated Statements of Income
(in thousands, except per share data)
Year ended December 31,
Revenues
Rental income
Income from investment in leases, financing receivables
Interest income from real estate loans
Total income from real estate
Gaming, food, beverage and other
Total revenues
Operating expenses
Gaming, food, beverage and other
Land rights and ground lease expense
General and administrative
Gains from dispositions
Impairment charge on land
Depreciation
Provision for credit losses, net
Total operating expenses
Income from operations
Other income (expenses)
Interest expense
Interest income
Insurance proceeds
Losses on debt extinguishment
Total other expenses
Income before income taxes
Income tax expense
Net income
Net income attributable to non-controlling interest in the Operating Partnership
Net income attributable to common shareholders
Earnings per common share:
Basic earnings attributable to common shareholders
Diluted earnings attributable to common shareholders
2022
2021
2020
1,173,376 $
138,309
—
1,311,685
—
1,311,685
1,106,658 $
—
—
1,106,658
109,693
1,216,351
1,031,036
—
19,130
1,050,166
102,999
1,153,165
—
49,048
51,319
(67,481)
3,298
238,688
6,898
281,770
1,029,915
(309,291)
1,905
—
(2,189)
(309,575)
53,039
37,390
61,245
(21,751)
—
236,434
8,226
374,583
841,768
(283,037)
197
3,500
—
(279,340)
720,340
17,055
703,285 $
(18,632)
684,653 $
562,428
28,342
534,086 $
(39)
534,047 $
56,698
29,041
68,572
(41,393)
—
230,973
—
343,891
809,274
(282,142)
569
—
(18,113)
(299,686)
509,588
3,877
505,711
—
505,711
2.71 $
2.70 $
2.27 $
2.26 $
2.31
2.30
$
$
$
$
$
See accompanying Notes to the Consolidated Financial Statements.
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Balance, December 31, 2019
Issuance of common stock, net of costs
Restricted stock activity
Dividends paid ($2.500 per common share)
Net income
Balance, December 31, 2020
Issuance of common stock, net of costs
Restricted stock activity
Dividends paid ($2.900 per common share)
Issuance of operating partnership units
Net income
Balance, December 31, 2021
Issuance of common stock, net of costs
Restricted stock activity
Dividends paid ($2.805 per common share)
Issuance of operating partnership units
Distributions to non-controlling interest
Net income
Balance, December 31, 2022
Gaming and Leisure Properties, Inc. and Subsidiaries
Consolidated Statements of Changes in Equity
(in thousands, except share data)
Common Stock
Shares
214,694,165 $
9,207,971
528,285
8,021,799
—
232,452,220
14,394,709
360,008
—
—
—
247,206,937
13,141,499
378,594
—
—
—
—
260,727,030 $
Amount
2,147 $
92
5
81
—
2,325
144
3
—
—
—
2,472
131
4
—
—
—
—
2,607 $
Additional
Paid-In
Capital
3,959,383 $
320,781
4,706
(81)
—
4,284,789
662,194
6,960
—
—
—
4,953,943
611,125
8,499
—
—
—
—
5,573,567 $
Accumulated
Deficit
(1,887,285)
—
—
(230,522)
505,711
(1,612,096)
—
—
(693,353)
—
534,047
(1,771,402)
—
—
(711,467)
—
—
684,653
(1,798,216) $
Noncontrolling
Interest
Operating
Partnership
Total
Equity
— $
—
—
—
—
—
—
—
—
205,088
39
205,127
—
—
—
137,043
(20,664)
18,632
340,138 $
2,074,245
320,873
4,711
(230,522)
505,711
2,675,018
662,338
6,963
(693,353)
205,088
534,086
3,390,140
611,256
8,503
(711,467)
137,043
(20,664)
703,285
4,118,096
See accompanying Notes to the Consolidated Financial Statements.
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Gaming and Leisure Properties, Inc. and Subsidiaries
Consolidated Statements of Cash Flows
(in thousands)
Year ended December 31,
Operating activities
Net income
Adjustments to reconcile net income to net cash provided by operating activities:
2022
2021
2020
$
703,285 $
534,086 $
505,711
Depreciation and amortization
Amortization of debt issuance costs, premiums and discounts
Accretion on financing receivables and adjustments to lease liabilities
(Gains) losses on dispositions of property
Deferred income taxes
Stock-based compensation
Straight-line rent adjustments
Deferred rent recognized
Impairment charges and losses on debt extinguishment
Provision for credit losses, net
(Increase) decrease,
Other assets
(Decrease), increase
Dividend and accounts payable, accrued salaries, wages and expenses
Accrued interest
Other liabilities
Net cash provided by operating activities
Investing activities
Capital project expenditures
Capital maintenance expenditures
Proceeds from assets held for sale and property and equipment, net of costs
Proceeds from sale of operations, net of transaction costs
Loan loss recovery
Acquisition of real estate assets and deposit payments
Investment in leases, financing receivables
Net cash used in investing activities
Financing activities
Dividends paid
Non-controlling interest distributions
Taxes paid related to shares withheld for taxes on stock award vestings
Proceeds from issuance of common stock, net
Proceeds from issuance of long-term debt
Financing costs
Repayments of long-term debt
Net cash (used in) provided by financing activities
Net increase in cash and cash equivalents, including cash classified within assets held for
sale
Decrease (increase) in cash classified within assets held for sale
Net increase in cash and cash equivalents
Cash and cash equivalents at beginning of period
Cash and cash equivalents at end of period
254,547
9,975
(18,959)
(67,481)
—
20,427
(4,294)
—
5,487
6,898
252,049
9,929
—
(21,751)
5,326
16,831
(3,993)
—
—
8,226
242,995
10,503
—
(41,393)
451
20,004
4,576
(337,500)
18,113
—
11,777
1,903
(6,628)
(251)
10,487
(11,772)
920,126
(23,865)
(159)
148,709
—
—
(350,126)
(129,047)
(354,488)
(770,858)
(20,664)
(11,924)
611,256
424,000
(11,907)
(1,271,053)
(1,051,150)
(3,412)
(475)
5,059
803,778
(13,926)
(2,270)
2,087
58,993
4,000
(487,475)
(592,243)
(1,030,834)
(633,901)
—
(9,867)
662,338
795,008
(7,118)
(363,391)
443,069
(485,512)
—
(485,512)
724,595
239,083 $
216,013
22,131
238,144
486,451
724,595 $
$
(7,160)
11,590
6,815
428,077
(474)
(3,130)
15
—
—
(5,898)
—
(9,487)
(230,522)
—
(15,293)
320,873
2,076,383
(11,641)
(2,076,631)
63,169
481,759
(22,131)
459,628
26,823
486,451
See accompanying Notes to the Consolidated Financial Statements and Note 17 for supplemental cash flow information and noncash investing and
financing activities.
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1. Business and Basis of Presentation
Gaming and Leisure Properties, Inc.
Notes to the Consolidated Financial Statements
Gaming and Leisure Properties, Inc. ("GLPI") is a self-administered and self-managed Pennsylvania real estate investment trust ("REIT"). GLPI
(together with its subsidiaries, the "Company") was incorporated on February 13, 2013, as a wholly-owned subsidiary of PENN Entertainment, Inc.,
formerly known as Penn National Gaming, Inc. (NASDAQ: PENN) ("PENN"). On November 1, 2013, PENN contributed to GLPI, through a series of
internal corporate restructurings, substantially all of the assets and liabilities associated with PENN’s real property interests and real estate development
business, as well as the assets and liabilities of Hollywood Casino Baton Rouge and Hollywood Casino Perryville (which are referred to as the "TRS
Properties") and then spun-off GLPI to holders of PENN's common and preferred stock in a tax-free distribution (the "Spin-Off"). The assets and liabilities
of GLPI were recorded at their respective historical carrying values at the time of the Spin-Off in accordance with the provisions of Financial Accounting
Standards Board ("FASB") Accounting Standards Codification ("ASC") 505-60 - Spinoffs and Reverse Spinoffs ("ASC 505").
The Company elected on its United States ("U.S.") federal income tax return for its taxable year that began on January 1, 2014 to be treated as a
REIT and GLPI, together with its indirect wholly-owned subsidiary, GLP Holdings, Inc., jointly elected to treat each of GLP Holdings, Inc., Louisiana
Casino Cruises, Inc. (d/b/a Hollywood Casino Baton Rouge) and Penn Cecil Maryland, Inc. (d/b/a Hollywood Casino Perryville) as a "taxable REIT
subsidiary" ("TRS") effective on the first day of the first taxable year of GLPI as a REIT. In connection with the Spin-Off, PENN allocated its accumulated
earnings and profits (as determined for U.S. federal income tax purposes) for periods prior to the consummation of the Spin-Off between PENN and GLPI.
In connection with its election to be taxed as a REIT for U.S. federal income tax purposes, GLPI declared a special dividend to its shareholders to distribute
any accumulated earnings and profits relating to the real property assets and attributable to any pre-REIT years, including any earnings and profits allocated
to GLPI in connection with the Spin-Off, to comply with certain REIT qualification requirements. In addition, during 2020, the Company and Tropicana
LV, LLC, a wholly owned subsidiary of the Company that at the time held the real estate of the Tropicana Las Vegas Casino Hotel Resort ("Tropicana Las
Vegas"), elected to treat Tropicana LV, LLC as a TRS. Further, as partial consideration for the transactions with The Cordish Companies ("Cordish")
described below, GLP Capital, L.P., the operating partnership of GLPI ("GLP Capital") issued 7,366,683 newly-issued operating partnership units ("OP
Units") to affiliates of Cordish. OP Units are exchangeable for common shares of the Company on a one-for-one basis, subject to certain terms and
conditions. Such issuance of OP Units to Cordish in exchange for its contribution of certain real property assets resulted in GLP Capital becoming treated
as a partnership for income tax purposes, with GLPI being deemed to contribute substantially all of the assets and liabilities of GLP Capital in exchange for
the general partnership and a majority of the limited partnership interests, and a minority limited partnership interest being owned by Cordish (the
"UPREIT Transaction"). In advance of the UPREIT Transaction, the Company, together with GLP Financing II, Inc. jointly elected for GLP Financing II,
Inc. to be treated as a TRS effective December 23, 2021.
On July 1, 2021, the Company sold the operations of Hollywood Casino Perryville to PENN and is leasing the real estate to PENN pursuant to a
standalone lease. On December 17, 2021, the Company sold the operations of Hollywood Casino Baton Rouge to Casino Queen Holding Company
("Casino Queen") and is leasing the real estate to Casino Queen pursuant to the Casino Queen Master Lease as described below. On December 17, 2021,
GLPI declared a special dividend to the Company's shareholders to distribute the accumulated earnings and profits attributable to these sales. In 2021, as a
result of the sale of the operations of Hollywood Casino Perryville and Hollywood Casino Baton Rouge, GLP Holdings, Inc. was merged into GLP Capital.
GLPI’s primary business consists of acquiring, financing, and owning real estate property to be leased to gaming operators in triple-net lease
arrangements. As of December 31, 2022, GLPI’s portfolio consisted of interests in 57 gaming and related facilities, the real property associated with 34
gaming and related facilities operated by PENN, the real property associated with 7 gaming and related facilities operated by Caesars Entertainment
Corporation (NASDAQ: CZR) ("Caesars"), the real property associated with 4 gaming and related facilities operated by Boyd Gaming Corporation
(NYSE: BYD) ("Boyd"), the real property associated with 7 gaming and related facilities operated by Bally's Corporation (NYSE: BALY) ("Bally's) the
real property associated with 3 gaming and related facilities operated by Cordish and the real property associated with 2 gaming and related facilities
operated by Casino Queen Holding Company Inc. ("Casino Queen"). These facilities, including our corporate headquarters building, are geographically
diversified across 17 states and contain approximately 27.8 million square feet. As of December 31, 2022, the Company's properties were 100% occupied.
GLPI expects to continue growing its portfolio by pursuing opportunities to acquire additional gaming facilities to lease to gaming operators under prudent
terms.
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PENN Master Lease
As a result of the Spin-Off, GLPI owns substantially all of PENN’s former real property assets (as of the consummation of the Spin-Off) and
leases back most of those assets to PENN for use by its subsidiaries pursuant to a unitary master lease (the "PENN Master Lease"). The PENN Master
Lease is a triple-net operating lease, the term of which expires October 31, 2033, with no purchase option, followed by three remaining 5-year renewal
options (exercisable by the tenant) on the same terms and conditions. See Note 12 for a discussion regarding such renewal options. Additionally, see Note
18 for a discussion related to the recent modification of the PENN Master Lease as well as the creation of a new master lease with PENN.
Amended Pinnacle Master Lease, Boyd Master Lease and Belterra Park Lease
In April 2016, the Company acquired substantially all of the real estate assets of Pinnacle Entertainment, Inc. ("Pinnacle") for approximately $4.8
billion. GLPI originally leased these assets back to Pinnacle, under a unitary triple-net lease, the term of which expires April 30, 2031, with no purchase
option, followed by four remaining 5-year renewal options (exercisable by the tenant) on the same terms and conditions (the "Pinnacle Master Lease"). On
October 15, 2018, the Company completed its previously announced transactions with PENN, Pinnacle and Boyd to accommodate PENN's acquisition of
the majority of Pinnacle's operations, pursuant to a definitive agreement and plan of merger between PENN and Pinnacle, dated December 17, 2017 (the
"PENN-Pinnacle Merger"). Concurrent with the PENN-Pinnacle Merger, the Company amended the Pinnacle Master Lease to allow for the sale of the
operating assets of Ameristar Casino Hotel Kansas City, Ameristar Casino Resort Spa St. Charles and Belterra Casino Resort from Pinnacle to Boyd (the
"Amended Pinnacle Master Lease") and entered into a new unitary triple-net master lease agreement with Boyd (the "Boyd Master Lease") for these
properties on terms similar to the Company’s Amended Pinnacle Master Lease. The Boyd Master Lease has an initial term of 10 years (from the original
April 2016 commencement date of the Pinnacle Master Lease and expiring April 30, 2026), with no purchase option, followed by five 5-year renewal
options (exercisable by the tenant) on the same terms and conditions. The Company also purchased the real estate assets of Plainridge Park Casino
("Plainridge Park") from PENN for $250.0 million, exclusive of transaction fees and taxes and added this property to the Amended Pinnacle Master Lease.
The Amended Pinnacle Master Lease was assumed by PENN at the consummation of the PENN-Pinnacle Merger. The Company also entered into a
mortgage loan agreement with Boyd in connection with Boyd's acquisition of Belterra Park Gaming & Entertainment Center ("Belterra Park"), whereby the
Company loaned Boyd $57.7 million (the "Belterra Park Loan"). In May 2020, the Company acquired the real estate of Belterra Park in satisfaction of the
Belterra Park Loan, subject to a long-term lease (the "Belterra Park Lease") with a Boyd affiliate operating the property. The Belterra Park Lease rent terms
are consistent with the Boyd Master Lease. The annual rent is comprised of a fixed component, part of which is subject to an annual escalator of up to 2%
if certain rent coverage ratio thresholds are met, and a component that is based on the performance of the facilities which is adjusted, subject to certain
floors, every two years to an amount equal to 4% of the average annual net revenues of Belterra Park during the preceding two years in excess of a
contractual baseline.
Meadows Lease
The real estate assets of the Meadows Racetrack and Casino are leased to PENN pursuant to a single property triple-net lease (the "Meadows
Lease"). The Meadows Lease commenced on September 9, 2016 and has an initial term of 10 years, with no purchase option, and the option to renew for
three successive 5-year terms and one 4-year term (exercisable by the tenant) on the same terms and conditions. The Meadows Lease contains a fixed
component, subject to annual escalators, and a component that is based on the performance of the facility, which is reset every two years to an amount
determined by multiplying (i) 4% by (ii) the average annual net revenues of the facility for the trailing two-year period. The Meadows Lease contains an
annual escalator provision for up to 5% of the base rent, if certain rent coverage ratio thresholds are met, which remains at 5% until the earlier of ten years
or the year in which total rent is $31 million, at which point the escalator will be reduced to a maximum of 2% annually thereafter. As described in Note 18,
the Meadows Lease was terminated during 2023 and the real estate associated with the property became part of a new master lease with PENN.
Second Amended and Restated Caesars Master Lease
On October 1, 2018, the Company closed its previously announced transaction to acquire certain real property assets from Tropicana
Entertainment Inc. ("Tropicana") and certain of its affiliates pursuant to a Purchase and Sale Agreement dated April 15, 2018 between Tropicana and GLP
Capital, which was subsequently amended on October 1, 2018 (as amended, the "Amended Real Estate Purchase Agreement"). Pursuant to the terms of the
Amended Real Estate Purchase Agreement, the Company acquired the real estate assets of Tropicana Atlantic City, Tropicana Evansville, Tropicana
Laughlin, Trop Casino Greenville and the Belle of Baton Rouge (the "GLP Assets") from Tropicana for an aggregate cash purchase price of $964.0 million,
exclusive of transaction fees and taxes (the "Tropicana Acquisition"). Concurrent with the Tropicana Acquisition, Eldorado Resorts, Inc. (now doing
business as Caesars) acquired the operating assets of these properties from
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Tropicana pursuant to an Agreement and Plan of Merger dated April 15, 2018 by and among Tropicana, GLP Capital, Caesars and a wholly-owned
subsidiary of Caesars and leased the GLP Assets from the Company pursuant to the terms of a new unitary triple-net master lease with an initial term of 15
years, with no purchase option, followed by four successive 5-year renewal periods (exercisable by the tenant) on the same terms and conditions (the
"Caesars Master Lease").
On June 15, 2020, the Company amended and restated the Caesars Master Lease (as amended, the "Amended and Restated Caesars Master
Lease") to, (i) extend the initial term of 15 years to 20 years, with renewals of up to an additional 20 years at the option of Caesars, (ii) remove the variable
rent component in its entirety commencing with the third lease year, (iii) in the third lease year, increase annual land base rent to approximately
$23.6 million and annual building base rent to approximately $62.1 million, (iv) provide fixed escalation percentages that delay the escalation of building
base rent until the commencement of the fifth lease year with building base rent increasing annually by 1.25% in the fifth and sixth lease years, 1.75% in
the seventh and eighth lease years and 2% in the ninth lease year and each lease year thereafter, (v) subject to the satisfaction of certain conditions, permit
Caesars to elect to replace the Tropicana Evansville and/or Tropicana Greenville properties under the Amended and Restated Caesars Master Lease with
one or more of Caesars Gaming Scioto Downs, The Row in Reno, Isle Casino Racing Pompano Park, Isle Casino Hotel – Black Hawk, Lady Luck Casino
– Black Hawk, Isle Casino Waterloo ("Waterloo"), Isle Casino Bettendorf ("Bettendorf") or Isle of Capri Casino Boonville, provided that the aggregate
value of such new property, individually or collectively, is at least equal to the value of Tropicana Evansville or Tropicana Greenville, as applicable, (vi)
permit Caesars to elect to sell its interest in Belle of Baton Rouge and sever it from the Amended and Restated Caesars Master Lease (with no change to the
rent obligation to the Company), subject to the satisfaction of certain conditions, and (vii) provide certain relief under the operating, capital expenditure and
financial covenants thereunder in the event of facility closures due to pandemics, governmental restrictions and certain other instances of unavoidable
delay. The effectiveness of the Amended and Restated Caesars Master Lease was subject to the review and approval of certain gaming regulatory agencies
and the expiration of applicable gaming regulatory advance notice periods which conditions were satisfied on July 23, 2020.
On December 18, 2020, the Company and Caesars entered into an amendment to the Amended and Restated Caesars Master Lease (as amended,
the "Second Amended and Restated Caesars Master Lease") in connection with the completion of an Exchange Agreement (the "Exchange Agreement")
with subsidiaries of Caesars in which Caesars transferred to the Company the real estate assets of Waterloo and Bettendorf in exchange for the transfer by
the Company to Caesars of the real property assets of Tropicana Evansville, plus a cash payment of $5.7 million. In connection with the Exchange
Agreement, the annual building base rent was increased to $62.5 million and the annual land component was increased to $23.7 million. The Exchange
Agreement resulted in a non-cash gain of $41.4 million in the fourth quarter of 2020, which represented the difference between the fair value of the
properties received compared to the carrying value of Tropicana Evansville and the cash payment made.
Horseshoe St. Louis Lease
On October 1, 2018 the Company entered into a loan agreement with Caesars in connection with Caesars’s acquisition of Lumière Place Casino, now
known as Horseshoe St. Louis ("Horseshoe St. Louis"), whereby the Company loaned Caesars $246.0 million (the "CZR loan"). The CZR loan bore
interest at a rate equal to (i) 9.09% until October 1, 2019 and (ii) 9.27% until its maturity. On the one-year anniversary of the CZR loan, the mortgage
evidenced by a deed of trust on the Horseshoe St. Louis property terminated and the loan became unsecured. On June 24, 2020, the Company received
approval from the Missouri Gaming Commission to own the Horseshoe St. Louis property in satisfaction of the CZR loan. On September 29, 2020, the
transaction closed and we entered into a new triple net lease with Caesars (the "Horseshoe St. Louis Lease") the initial term of which expires on October
31, 2033 with four separate renewal options of five years each, exercisable at the tenant's option. The Horseshoe St. Louis Lease rent terms were adjusted
on December 1, 2021 such that the annual escalator is now fixed at 1.25% for the second through fifth lease years, increasing to 1.75% for the sixth and
seventh lease years and thereafter increasing by 2.0% for the remainder of the lease.
Bally's Master Lease
On June 3, 2021, the Company completed its previously announced transaction pursuant to which a subsidiary of Bally's acquired 100% of the
equity interests in the Caesars subsidiary that currently operates Tropicana Evansville and the Company reacquired the real property assets of Tropicana
Evansville from Caesars for a cash purchase price of approximately $340.0 million. In addition, the Company purchased the real estate assets of Dover
Downs Hotel & Casino from Bally's for a cash purchase price of approximately $144.0 million. The real estate assets of these two facilities were added to a
new triple net master lease (the "Bally's Master Lease") which has an initial term of 15 years, with no purchase option, followed by four five-year renewal
options (exercisable by the tenant) on the same terms and conditions.
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On April 1, 2022, the Company completed the previously announced acquisition from Bally's of the land and real estate assets of Bally's three
Black Hawk Casinos in Black Hawk, Colorado and Bally's Quad Cities Casino & Hotel in Rock Island, Illinois for $150 million in total consideration.
These properties were added to the existing Bally's Master Lease and the initial rent for the lease was increased by $12.0 million on an annual basis, subject
to the escalation clauses described above.
On January 3, 2023, the Company closed its previously announced acquisition from Bally's of the land and real estate assets of Bally's Hard Rock
Hotel & Casino ("Bally's Biloxi") and Bally's Tiverton Casino & Hotel ("Bally's Tiverton") for $635.0 million in total consideration, inclusive of $15
million in the form of OP units. These properties were added to the Company's existing Master Lease with Bally's. The initial annual rent for the lease was
increased by $48.5 million on an annual basis, subject to contractual escalations based on the Consumer Price Index ("CPI"), with a 1% floor and 2%
ceiling, subject to the CPI meeting a 0.5% threshold.
In connection with GLPI’s commitment to consummate the Bally’s acquisitions, it also agreed to pre-fund, at Bally’s election, a deposit of up to
$200.0 million, which was funded in September 2022 and recorded in Other assets on the Consolidated Balance Sheet at December 31, 2022. This amount
was credited to GLPI along with a $9.0 million transaction fee payable at closing which occurred on January 3, 2023. The Company continues to have the
option, subject to receipt by Bally's of required consents, to acquire the real property assets of Bally's Twin River Lincoln Casino Resort ("Bally's Lincoln")
prior to December 31, 2024 for a purchase price of $771.0 million and additional rent of $58.8 million. See Note 18 for further details.
Tropicana Las Vegas Lease
On April 16, 2020, the Company and certain of its subsidiaries closed on its previously announced transaction to acquire the real property
associated with the Tropicana Las Vegas Hotel & Casino, Inc. ("Tropicana Las Vegas") from PENN in exchange for rent credits of $307.5 million, which
were applied against future rent obligations due under the parties' existing leases during 2020.
On September 26, 2022, Bally’s acquired both GLPI’s building asset and PENN's outstanding equity interests in Tropicana Las Vegas for an
aggregate cash acquisition price, net of fees and expenses, of approximately $145 million, which resulted in a pre-tax gain of $67.4 million, $52.8 million
after-tax. GLPI retained ownership of the land and concurrently entered into a ground lease for an initial term of 50 years (with a maximum term of 99
years inclusive of tenant renewal options) with initial annual rent of $10.5 million. The ground lease is supported by a Bally’s corporate guarantee and
cross-defaulted with the Bally's Master Lease (the "Tropicana Las Vegas Lease").
Morgantown Lease
On October 1, 2020, the Company and PENN closed on their previously announced transaction whereby GLPI acquired the land under PENN's
gaming facility under construction in Morgantown, Pennsylvania in exchange for $30.0 million in rent credits that were fully utilized by PENN in the
fourth quarter of 2020. The Company is leasing the land back to an affiliate of PENN for an initial term of 20 years, followed by six 5-year renewal options
exercisable by the tenant (the "Morgantown Lease").
Casino Queen Master Lease
On November 25, 2020, the Company entered into a definitive agreement to sell the operations of its Hollywood Casino Baton Rouge to Casino
Queen for $28.2 million (the "HCBR transaction"). The HCBR transaction closed on December 17, 2021 which resulted in a pre-tax gain of $6.8 million
(loss of $7.7 million after tax) for the year ended December 31, 2021. The Company retained ownership of all real estate assets at Hollywood Casino Baton
Rouge and simultaneously entered into a triple net master lease with Casino Queen, which includes the Casino Queen property in East St. Louis that was
leased by the Company to Casino Queen and the Hollywood Casino Baton Rouge facility ("Casino Queen Master Lease"). The initial annual cash rent is
$21.4 million and the lease has an initial term of 15 years with four 5-year renewal options exercisable by the tenant on the same terms and conditions. This
rental amount will be increased annually by 0.5% for the first six years. Beginning with the seventh lease year through the remainder of the lease term, if
the CPI increases by at least 0.25% for any lease year then annual rent shall be increased by 1.25%, and if the CPI increase is less than 0.25% then rent will
remain unchanged for such lease year. Additionally, the Company will complete the current landside development project that is in process and the rent
under the Casino Queen Master Lease will be adjusted upon delivery to reflect a yield of 8.25% on GLPI's project costs. The Company will also have a
right of first refusal with Casino Queen for other sale leaseback transactions up to$50.0 million until December 2023. Finally, in 2021, GLPI forgave the
unsecured $13.0 million, 5.5 year term loan made to CQ Holding
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Company, Inc., an affiliate of Casino Queen, which was previously written off in return for a one-time cash payment of $4 million which was recorded in
provision for credit losses, net, for the year ended December 31, 2021.
Perryville Lease
On December 15, 2020, the Company announced that PENN exercised its option to purchase from the Company the operations of our Hollywood
Casino Perryville, located in Perryville, Maryland, for $31.1 million. The transaction closed on July 1, 2021, which resulted in a pre-tax gain of
$15.6 million ($11.3 million after tax) for the year ended December 31, 2021. The Company retained ownership of all the real estate assets of Hollywood
Casino Perryville and simultaneously entered into a triple net lease with PENN (the "Perryville Lease"). As described in Note 18, the Perryville Lease was
terminated during 2023 and the real estate associated with the property became part of a new master lease with PENN.
Maryland Live! Lease and Pennsylvania Live! Lease
On December 6, 2021, the Company announced that it agreed to acquire the real property assets of Live! Casino & Hotel Maryland, Live! Casino &
Hotel Philadelphia, and Live! Casino Pittsburgh, including applicable long-term ground leases, from affiliates of Cordish for aggregate consideration of
approximately $1.81 billion, excluding transaction costs at deal announcement. The transaction also includes a binding partnership on future Cordish
casino developments, as well as potential financing partnerships between the Company and Cordish in other areas of Cordish's portfolio of real estate and
operating businesses. On December 29, 2021, the Company completed its acquisition of the real property assets of Live! Casino & Hotel Maryland and
entered into a single asset lease for Live! Casino & Hotel Maryland (the "Maryland Live! Lease"). On March 1, 2022, the Company completed its
acquisition of the real estate assets of Live! Casino & Hotel Philadelphia and Live! Casino Pittsburgh for $689 million and leased back the real estate to
Cordish pursuant to a new triple net master lease with Cordish (the "Pennsylvania Live! Master Lease"). The Pennsylvania Live! Master Lease and the
Maryland Live! Lease both have initial lease terms of 39 years, with a maximum term of 60 years inclusive of tenant renewal options. The annual rent for
the Maryland Live! Lease is $75.0 million and the Pennsylvania Live! Master Lease is $50 million, both of which have a 1.75% fixed yearly escalator on
the entirety of rent commencing on the leases' second anniversary.
2. Summary of Significant Accounting Policies
Basis of Presentation
The preparation of financial statements in conformity with accounting principles generally accepted in the United States ("GAAP") requires
management to make estimates and assumptions that affect the reported amounts of assets and liabilities and disclosure of contingent assets and liabilities
at the date of the financial statements, and the reported amounts of revenue and expenses for the reporting periods. Actual results may differ from those
estimates. Certain prior period amounts have been reclassified to conform to the current period presentation. Specifically, property and equipment, net, is
now classified in other assets on the Consolidated Balance Sheets, accounts payable has been combined with dividend payable and accrued expenses and
finally, gaming, property and other taxes and income taxes payable were reclassified to other liabilities on the Consolidated Balance Sheets.
Principles of Consolidation and Non-controlling interest
The consolidated financial statements include the accounts of GLPI and its subsidiaries as well as the Company's operating partnership, which is a
variable interest entity ("VIE") in which the Company is the primary beneficiary. The Company presents non-controlling interests and classifies such
interests as a separate component of equity, separate from GLPI's stockholders' equity and as net income attributable to non-controlling interest in the
Consolidated Statement of Income. The operating partnership is a VIE in which the Company is the primary beneficiary because it has the power to direct
the activities of the VIE that most significantly impact the partnership's economic performance and has the obligation to absorb losses of the VIE that could
be potentially significant to the VIE and the right to receive benefits from the VIE that could potentially be significant to the VIE. Therefore, the Company
consolidates the accounts of the operating partnership, and reflects the third party ownership in this entity as a noncontrolling interest in the Consolidated
Balance Sheet. All intercompany accounts and transactions have been eliminated in consolidation.
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Real Estate Investments
Real estate investments primarily represent land and buildings leased to the Company's tenants. The Company records the acquisition of real estate
assets at fair value, including acquisition and closing costs. The cost of properties developed by the Company include costs of construction, property taxes,
interest and other miscellaneous costs incurred during the development period until the project is substantially complete and available for occupancy. The
Company considers the period of future benefit of the asset to determine the appropriate useful lives. Depreciation is computed using a straight-line method
over the estimated useful lives of the buildings and building improvements which are generally between 10 to 31 years.
The Company continually monitors events and circumstances that could indicate that the carrying amount of its real estate investments may not be
recoverable or realized. The factors considered by the Company in performing these assessments include evaluating whether the tenant is current on its
lease payments, the tenant’s rent coverage ratio, the financial stability of the tenant and its parent company, and any other relevant factors. When indicators
of potential impairment suggest that the carrying value of a real estate investment may not be recoverable, the Company determines whether the
undiscounted cash flows from the underlying lease exceeds the real estate investments' carrying value. If we determine the estimated undiscounted cash
flow are less than the asset's carrying value, then the Company would recognize an impairment charge equivalent to the amount required to reduce the
carrying value of the asset to its estimated fair value, calculated in accordance with GAAP. The Company groups its real estate investments together by
lease, the lowest level for which identifiable cash flows are available, in evaluating impairment. In assessing the recoverability of the carrying value, the
Company must make assumptions regarding future cash flows and other factors. The factors considered by the Company in performing this assessment
include current operating results, market and other applicable trends and residual values, as well as the effect of obsolescence, demand, competition and
other factors. If these estimates or the related assumptions change in the future, the Company may be required to record an impairment loss.
Investment in Leases - Financing receivables
In accordance with ASC 842 - Leases ("ASC 842"), for transactions in which the Company enters into a contract to acquire an asset and leases it
back to the seller under a sales-type lease (i.e. a sale leaseback transaction), the Company must determine whether control of the asset has transferred to the
Company. In cases whereby control has not transferred to the Company, we do not recognize the underlying asset but instead recognize a financial asset in
accordance with ASC 310 "Receivables". The accounting for the financing receivable under ASC 310 is materially consistent with the accounting for our
investments in leases - sales type under ASC 842. The Company recognizes interest income on Investment in leases - financing receivables under the
effective yield method. Generally, we would recognize interest income to the extent the tenant is not more than 90 days delinquent on their rental
obligations. We have concluded that the Company's Maryland Live! Lease and Pennsylvania Live! Lease were required to be accounted for as Investment
in leases - financing receivable on the Consolidated Balance Sheets in accordance with ASC 310, since control of the underlying assets was not considered
to have transferred to the Company under GAAP given the significant initial term of each of the leases of 39 years.
Real Estate Loans and Other Loans Receivable
The Company may periodically loan funds to casino owner-operators for the purchase of gaming related real estate and/or operations. Loans for
the purchase of real estate assets of gaming-related properties are classified as real estate loans on the Company's Consolidated Balance Sheets, while loans
for an operator's general operations are classified as loans receivable on the Company's Consolidated Balance Sheets. Loans receivable are recorded on the
Company's Consolidated Balance Sheets at carrying value which approximates fair value since collection of principal is reasonably assured. Interest
income related to real estate loans is recorded as interest income from real estate loans within the Company's consolidated statements of income in the
period earned, whereas interest income related to other loans receivable is recorded as non-operating interest income within the Company's consolidated
statements of income in the period earned. The Company had no such loans outstanding at December 31, 2022 or December 31, 2021.
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Lease Assets and Lease Liabilities
The Company determines whether a contract is or contains a lease at its inception. A lease is defined as the right to control the use of identified
property, plant, or equipment for a period of time in exchange for consideration. Right-of-use assets and lease liabilities are recorded on the Company's
Consolidated Balance Sheet at the lease commencement date for leases in which the Company acts as lessee. Right-of-use assets represent the Company's
rights to use underlying assets for the term of the lease and lease liabilities represent the Company's future obligations under the lease agreement. Right-of-
use assets and lease liabilities are recognized at the lease commencement date based upon the estimated present value of the lease payments. As the rate
implicit in the Company's leases (in which the Company acts as lessee) cannot readily be determined, the Company utilizes its own estimated incremental
borrowing rates to determine the present value of its lease payments. Consideration is given to the Company's recent debt issuances, as well as publicly
available data for instruments with similar characteristics, including tenor, when determining the incremental borrowing rates of the Company's leases.
The Company includes options to extend a lease in its lease term when it is reasonably certain that the Company will exercise those renewal
options. In the instance of the Company's ground leases associated with its tenant occupied properties, the Company has included all available renewal
options in the lease term, as it intends to renew these leases indefinitely. The Company accounts for the lease and nonlease components (as necessary) of its
leases of all classes of underlying assets as a single lease component. Leases with a term of 12 months or less are not recorded on the Company's
Consolidated Balance Sheets.
Land rights, net represent the Company's rights to land subject to long-term ground leases. The Company obtained ground lease rights through the
acquisition of several of its rental properties and immediately subleased the land to its tenants. These land rights represent the below market value of the
related ground leases. The Company assessed the acquired ground leases to determine if the lease terms were favorable or unfavorable, given market
conditions at the acquisition date. Because the market rents to be received under the Company's triple-net tenant leases were greater than the rents to be
paid under the acquired ground leases, the Company concluded that the ground leases were below market and were therefore required to be recorded as a
definite lived asset (land rights) on its books.
Right-of-use assets and land rights are monitored for potential impairment in much the same way as the Company's real estate assets, using the
impairment model in ASC 360 - Property, Plant and Equipment. If the Company determines the carrying amount of a right-of-use asset or land right is not
recoverable, it would recognize an impairment charge equivalent to the amount required to reduce the carrying value of the asset to its estimated fair value,
calculated in accordance with GAAP.
Cash and Cash Equivalents
The Company considers all cash balances and highly-liquid investments with original maturities of three months or less to be cash and cash
equivalents.
Other Assets
Other assets at December 31, 2022 included a $200 million deposit that was prefunded to Bally's in September 2022. This amount was credited to
the Company in connection with the January 3, 2023 acquisition of the Bally's Biloxi and Bally's Tiverton real estate assets. See Note 6 for further details.
Excluding this deposit, other assets primarily consists of accounts receivable and deferred compensation plan assets (See Note 11 for further details on the
deferred compensation plan). Other assets also include prepaid expenditures for goods or services before the goods are used or the services are received.
These amounts are deferred and charged to operations as the benefits are realized and primarily consist of prepayments for insurance, property taxes and
other contracts that will be expensed during the subsequent year.
Debt Issuance Costs and Bond Premiums and Discounts
Debt issuance costs that are incurred by the Company in connection with the issuance of debt are deferred and amortized to interest expense over
the contractual term of the underlying indebtedness. In accordance with ASU 2015-03, Interest - Imputation of Interest (Subtopic 835-30): Simplifying the
Presentation of Debt Issuance Costs, the Company records long-term debt net of unamortized debt issuance costs on its Consolidated Balance Sheets.
Similarly, the Company records long-term debt net of any unamortized bond premiums and original issuance discounts on its Consolidated Balance Sheets.
Any original issuance discounts or bond premiums are also amortized to interest expense over the contractual term of the underlying indebtedness.
Fair Value of Financial Assets and Liabilities
Fair value is defined as the price that would be received to sell an asset or transfer a liability in an orderly transaction between market participants
at the measurement date. Assets and liabilities recorded at fair value are classified based upon the
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level of judgment associated with the inputs used to measure their fair value. ASC 820 - Fair Value Measurements and Disclosures ("ASC 820")
establishes a hierarchy that prioritizes fair value measurements based on the types of inputs used for the various valuation techniques (market approach,
income approach, and cost approach). The levels of the hierarchy related to the subjectivity of the valuation inputs are described below:
•
•
•
Level 1: Observable inputs such as quoted prices in active markets for identical assets or liabilities.
Level 2: Inputs other than quoted prices that are observable for the asset or liability, either directly or indirectly; these include quoted prices for
similar assets or liabilities in active markets, such as interest rates and yield curves that are observable at commonly quoted intervals.
Level 3: Unobservable inputs that reflect the reporting entity's own assumptions, as there is little, if any, related market activity.
The Company's assessment of the significance of a particular input to the fair value measurement requires judgment and may affect the valuation of
assets and liabilities and their placement within the fair value hierarchy.
Revenue Recognition
The Company accounts for our investments in leases under ASC 842. Upon lease inception or lease modification, we assess lease classification to
determine whether the lease should be classified as a sales-type, direct financing or operating lease. As required by ASC 842, we separately assess the land
and building components of the property to determine the classification of each component. If the lease component is determined to be a sales-type lease or
direct financing lease, we record a net investment in the lease, which is equal to the sum of the lease receivable and the unguaranteed residual asset,
discounted at the rate implicit in the lease. Any difference between the fair value of the asset and the net investment in the lease is considered selling profit
or loss and is either recognized upon execution of the lease or deferred and recognized over the life of the lease, depending on the classification of the
lease. Since we purchase properties and simultaneously enter into new leases directly with the tenants, the net investment in the lease is generally equal to
the purchase price of the asset, and, due to the long term nature of our leases, the land and building components of an investment generally have the same
lease classification.
The Company recognizes the related income from our financing receivables using an effective interest rate at a constant rate over the term of the
applicable leases. As a result, the cash payments received under financing receivables will not equal the income recognized for accounting purposes.
Rather, a portion of the cash rent the Company will receive is recorded as interest income with the remainder as a change to financing receivables. Initial
direct costs incurred in connection with entering into financing receivables are included in the balance of the financing receivables. Such amounts will be
recognized as a reduction to interest income from financing receivables over the term of the lease using the effective interest rate method. Costs that would
have been incurred regardless of whether the lease was signed, such as legal fees and certain other third party fees, are expensed as incurred.
The Company recognizes rental revenue from tenants, including rental abatements, lease incentives and contractually fixed increases attributable
to operating leases, on a straight-line basis over the term of the related leases when collectability is reasonably assured in accordance with ASC 842.
Additionally, percentage rent that is fixed and determinable at the lease inception date is recorded on a straight-line basis over the lease term, resulting in
the recognition of deferred rental revenue on the Company’s Consolidated Balance Sheets. Deferred rental revenue is amortized to rental revenue on a
straight-line basis over the remainder of the lease term. The lease term includes the initial non-cancelable lease term and any reasonably assured renewable
periods. Contingent rental income that is not fixed and determinable at lease inception is recognized only when the lessee achieves the specified target.
Recognition of rental income commences when control of the facility has been transferred to the tenant.
Additionally, in accordance with ASC 842, the Company records revenue for the ground lease rent paid by its tenants with an offsetting expense in
land rights and ground lease expense within the Consolidated Statement of Income as the Company has concluded that as the lessee it is the primary
obligor under the ground leases. The Company subleases these ground leases back to its tenants, who are responsible for payment directly to the landlord.
The Company may periodically loan funds to casino owner-operators for the purchase of gaming related real estate. Interest income related to real
estate loans is recorded as revenue from real estate within the Company's consolidated statements of income in the period earned.
Gaming revenue generated by the TRS Properties mainly consisted of revenue from slot machines and to a lesser extent, table game and poker
revenue. Gaming revenue from slot machines is the aggregate net difference between gaming wins
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and losses with liabilities recognized for funds deposited by customers before gaming play occurs, for "ticket-in, ticket-out" coupons in the customers’
possession, and for accruals related to the anticipated payout of progressive jackpots. Progressive slot machines, which contain base jackpots that increase
at a progressive rate based on the number of coins played, are charged to revenue as the amount of the jackpots increase. Table game gaming revenue is the
aggregate of table drop adjusted for the change in aggregate table chip inventory. Table drop is the total dollar amount of the currency, coins, chips, tokens,
outstanding counter checks (markers), and front money that are removed from the live gaming tables. Gaming revenue is recognized net of certain sales
incentives, including promotional allowances in accordance with ASC 606 - Revenues from Contracts with Customers. The Company also defers a portion
of the revenue received from customers (who participate in the points-based loyalty programs) at the time of play until a later period when the points are
redeemed or forfeited. Other revenues at the TRS Properties are derived from the properties' dining, retail and certain other ancillary activities and revenue
for these activities is recognized as services are performed. As of December 31, 2021, the Company no longer operates gaming assets and therefore gaming
revenue will no longer be recorded.
Allowance for Credit Losses
The Company follows ASC 326 “Credit Losses” (“ASC 326”), which requires that the Company measure and record current expected credit
losses (“CECL”), the scope of which includes our Investments in leases - financing receivables and real estate loans. The Company's adoption of
Accounting Standards Update ASU 2016-13 on January 1, 2020 did not result in the Company recording any allowances against its real estate loans for
expected losses.
We have elected to use an econometric default and loss rate model to estimate the Allowance for credit losses, or CECL allowance. This model
requires us to calculate and input lease and property-specific credit and performance metrics which in conjunction with forward-looking economic
forecasts, project estimated credit losses over the life of the lease or loan. The Company then records a CECL allowance based on the expected loss rate
multiplied by the outstanding investment in lease balance.
Expected losses within our cash flows are determined by estimating the probability of default (“PD”) and loss given default (“LGD”) of our
Investment in lease, financing receivables. We have engaged a nationally recognized data analytics firm to assist us with estimating both the PD and LGD
for this financing receivable. The PD and LGD are estimated during the initial term of the leases. The PD and LGD estimates for the lease term were
developed using current financial condition forecasts. The PD and LGD predictive model was developed using the average historical default rates and
historical loss rates, respectively, of over 100,000 commercial real estate loans dating back to 1998 that have similar credit profiles or characteristics to the
real estate underlying the Company's financing receivables. Management will monitor the credit risk related to its financing receivables by obtaining the
rent coverage on the leases on a periodic basis. The Company also monitors legislative changes to assess whether it would have an impact on the
underlying performance of its tenant. We are unable to use our historical data to estimate losses as the Company has no loss history to date on its lease
portfolio. Our tenants are current on all of their rental obligations as of December 31, 2022.
The CECL allowance is recorded as a reduction to our net Investments in leases - financing receivables, on our Consolidated Balance Sheets. We
are required to update our CECL allowance on a quarterly basis with the resulting change being recorded in the Consolidated Statement of Income for the
relevant period. Finally, each time the Company makes a new investment in an asset subject to ASC 326, the Company will be required to record an initial
CECL allowance for such asset, which will result in a non-cash charge to the Consolidated Statement of Income for the relevant period. See Note 8 for
further information.
Charge-offs are deducted from the allowance in the period in which they are deemed uncollectible. Recoveries previously written off are recorded
when received. The Company recorded a recovery of $4 million for the year ended December 31, 2021 for the settlement of a loan that was previously
written off to Casino Queen.
Stock-Based Compensation
The Company's Amended 2013 Long Term Incentive Compensation Plan (the "2013 Plan") provides for the Company to issue restricted stock
awards, including performance-based restricted stock awards, and other equity or cash based awards to employees. Any director, employee or consultant
shall be eligible to receive such awards.
The Company accounts for stock compensation under ASC 718 - Compensation - Stock Compensation, which requires the Company to expense
the cost of employee services received in exchange for an award of equity instruments based on the grant-date fair value of the award. This expense is
recognized ratably over the requisite service period following the date of grant. The fair value of the Company's time-based restricted stock awards is
equivalent to the closing stock price on the day
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prior to grant. The Company utilizes a third-party valuation firm to measure the fair value of performance-based restricted stock awards at grant date using
the Monte Carlo model.
The unrecognized compensation cost relating to restricted stock awards and performance-based restricted stock awards is recognized as expense
over the awards’ remaining vesting periods. See Note 13 for further information related to stock-based compensation.
Income Taxes
The Company's TRS are able to engage in activities resulting in income that would not be qualifying income for a REIT. As a result, certain
activities of the Company which occur within its TRS are subject to federal and state income taxes.
The Company accounts for income taxes in accordance with ASC 740 - Income Taxes ("ASC 740"). Under ASC 740, deferred tax assets and
liabilities are determined based on the differences between the financial statement carrying amounts and the tax bases of existing assets and liabilities and
are measured at the prevailing enacted tax rates that will be in effect when these differences are settled or realized. ASC 740 also requires that deferred tax
assets be reduced by a valuation allowance if it is more likely than not that some portion or all of the deferred tax assets will not be realized. The
realizability of the deferred tax assets is evaluated by assessing the valuation allowance and by adjusting the amount of the allowance, if any, as necessary.
The factors used to assess the likelihood of realization are the forecast of future taxable income.
ASC 740 also creates a single model to address uncertainty in tax positions, and clarifies the accounting for uncertainty in income taxes
recognized in an enterprise's financial statements by prescribing the minimum recognition threshold a tax position is required to meet before being
recognized in an enterprise's financial statements. It also provides guidance on derecognition, measurement, classification, interest and penalties,
accounting in interim periods, disclosure and transition. The Company did not have any uncertain tax positions for the three years ended December 31,
2022.
The Company is required under ASC 740 to disclose its accounting policy for classifying interest and penalties, the amount of interest and
penalties charged to expense each period, as well as the cumulative amounts recorded in the Consolidated Balance Sheets. If and when they occur, the
Company will classify any income tax-related penalties and interest accrued related to unrecognized tax benefits in taxes on income within the
Consolidated Statements of Income. During the years ended December 31, 2022, 2021 and 2020, the Company recognized no penalties and interest, net of
deferred income taxes.
The Company continues to be organized and to operate in a manner that will permit the Company to qualify as a REIT. To qualify as a REIT, the
Company must meet certain organizational and operational requirements, including a requirement to distribute at least 90% of its annual REIT taxable
income to shareholders. As a REIT, the Company generally will not be subject to federal, state or local income tax on income that it distributes as dividends
to its shareholders, except in those jurisdictions that do not allow a deduction for such distributions. If the Company fails to qualify as a REIT in any
taxable year, it will be subject to U.S. federal, state and local income tax, including any applicable alternative minimum tax, on its taxable income at regular
corporate income tax rates, and dividends paid to its shareholders would not be deductible by the Company in computing taxable income. Any resulting
corporate liability could be substantial and could materially and adversely affect the Company's net income and net cash available for distribution to
shareholders. Unless the Company was entitled to relief under certain Internal Revenue Code provisions, the Company also would be disqualified from re-
electing to be taxed as a REIT for the four taxable years following the year in which it failed to qualify to be taxed as a REIT.
Earnings Per Share
The Company calculates earnings per share ("EPS") in accordance with ASC 260 - Earnings Per Share. Basic EPS is computed by dividing net
income applicable to common shareholders by the weighted-average number of common shares outstanding during the period, excluding net income
attributable to participating securities (unvested restricted stock awards). Diluted EPS reflects the additional dilution for all potentially-dilutive securities
such as stock options, unvested restricted shares, unvested performance-based restricted shares and the dilutive effect of the Company's forward sale
agreement as described in Note 16. The effect of the conversion of the Operating Partnership ("OP") units to common shares is excluded from the
computation on basic and diluted earnings per share because all net income attributable to the Noncontrolling interest holders are recorded as income
attributable to non-controlling interests, thus is excluded from net income available to common shareholders. See Note 15 for further details on the
Company's earnings per share calculations.
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Segment Information
As described in Note 1, due to the sale of the operations of Hollywood Casino Perryville and Hollywood Casino Baton Rouge in 2021, the
Company's operations consist solely of investments in real estate for which all such real estate properties are similar to one another in that they consist of
destination and leisure properties and related offerings, whose tenants offer casino gaming, hotel, convention, dining, entertainment and retail amenities,
have similar economic characteristics and are governed by triple-net operating leases. The operating results of the Company's real estate investments are
reviewed in the aggregate, by the chief operating decision maker (as such term is defined in ASC 280 - Segment Reporting). As such, as of January 1,
2022, the Company has one reportable segment.
Concentration of Credit Risk
Concentrations of credit risk arise when a number of operators, tenants, or obligors related to the Company's investments are engaged in similar
business activities, or activities in the same geographic region, or have similar economic features that would cause their ability to meet contractual
obligations, including those to the Company, to be similarly affected by changes in economic conditions. Additionally, concentrations of credit risk may
arise when revenues of the Company are derived from a small number of tenants. As of December 31, 2022, substantially all of the Company's real estate
properties were leased to PENN, Cordish, Caesars, Boyd and Bally's. During the year ended December 31, 2022, approximately 65%,11%, 9%, 8% and 5%
of the Company's collective income from real estate was derived from tenant leases with PENN, Cordish, Caesars, Boyd and Bally's respectively. PENN,
Caesars, Boyd and Bally's are publicly traded companies that are subject to the informational filing requirements of the Securities Exchange Act of 1934, as
amended, and are required to file periodic reports on Form 10-K and Form 10-Q and current reports on Form 8-K with the Securities and Exchange
Commission ("SEC"). Readers are directed to PENN,Caesars, Boyd and Bally's respective websites for further financial information on these companies.
Other than the Company's tenant concentration, management believes the Company's portfolio was reasonably diversified by geographical location and did
not contain any other significant concentrations of credit risk. As of December 31, 2022, the Company's portfolio of 57 properties is diversified by location
across 17 states.
Financial instruments that subject the Company to credit risk consist of cash and cash equivalents, accounts receivable, real estate loans and other
loans receivable. The Company's policy is to limit the amount of credit exposure to any one financial institution and place investments with financial
institutions evaluated as being creditworthy, or in short-term money market and tax-free bond funds which are exposed to minimal interest rate and credit
risk. At times, the Company has bank deposits and overnight repurchase agreements that exceed federally-insured limits.
3. New Accounting Pronouncements
Accounting Pronouncements Adopted in 2022
In March 2022, the FASB issued ASU No 2022-02, Financial Instruments-Credit Losses which eliminates the accounting guidance for troubled
debt restructurings ("TDRs") and requires that entities disclose current-period gross write-offs by year of origination for financing receivables and net
investment in leases within the scope of ASC 326-20, Financial Instruments-Credit Losses-Measured and Amortized Cost. The Company early adopted the
amendments in this update which had no impact on its financial statements or related disclosures as the Company has no TDRs, write-offs, or modifications
to disclose on its net investment in leases.
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4. Real Estate Investments
Real estate investments, net, represent investments in 57 rental properties and the corporate headquarters building and is summarized as follows:
Land and improvements
Building and improvements
Construction in progress
Total real estate investments
Less accumulated depreciation
Real estate investments, net
December 31,
2022
December 31,
2021
(in thousands)
$
$
3,189,141
6,407,313
29,564
9,626,018
(1,918,083)
7,707,935
$
$
3,141,646
6,311,573
5,699
9,458,918
(1,681,367)
7,777,551
During 2022, the Company entered into an agreement and completed the sale of excess land for approximately $3.5 million that had a carrying
value of $6.8 million and as such the Company recorded an impairment charge for the year ended December 31, 2022.
5. Assets Held for Sale
On April 13, 2021, Bally’s agreed to acquire both GLPI’s non-land real estate assets and PENN's outstanding equity interests in Tropicana Las Vegas for
an aggregate cash acquisition price, net of fees and expenses, of approximately $145 million. GLPI will retain ownership of the land and concurrently enter
into a ground lease for 50 years with initial annual rent of $10.5 million. The ground lease will be supported by a Bally’s corporate guarantee and cross-
defaulted with the Bally's Master Lease. This transaction closed on September 26, 2022 and the Company recorded a pre-tax gain of $67.4 million,
$52.8 million after-tax, on the sale of the building. At December 31, 2021, the Company classified the building value of Tropicana Las Vegas which totaled
$77.7 million, in Assets held for sale and the land value in Real estate investments, net on the Consolidated Balance Sheet since the transaction was
expected to close within 12 months.
6. Acquisitions
The Company accounts for its acquisitions of real estate assets as asset acquisitions under ASC 805 - Business Combinations. Under asset
acquisition accounting, transaction costs incurred to acquire the purchased assets are also included as part of the asset cost.
Current year acquisitions
On March 1, 2022, the Company completed its previously announced transaction with Cordish to acquire the real property assets of Live! Casino
& Hotel Philadelphia and Live! Casino Pittsburgh and simultaneously entered into the Pennsylvania Live! Master Lease such that Cordish continues to
operate the facilities. The Company has concluded that the Pennsylvania Live! Master Lease is required to be accounted for as an Investment in leases,
financing receivables on our Condensed Consolidated Balance Sheets in accordance with ASC 310, since control of the underlying assets was not
considered to have transferred to the Company under GAAP given the significant initial lease term of the Pennsylvania Live! Master Lease which was 39
years. The purchase price of $689.0 million was recorded in Investment in leases, financing receivables, net.
On April 13, 2021, the Company announced that it had entered into a binding term sheet with Bally's to acquire the real estate of Bally’s casino
properties in Black Hawk, CO and its recently acquired property in Rock Island, IL, in a transaction that was subject to regulatory approval. This
transaction closed on April 1, 2022 and total consideration for the acquisition was $150 million. The parties added the properties to the Bally's Master
Lease for incremental rent of $12.0 million.
In addition, Bally’s has granted GLPI a right of first refusal to fund the real property acquisition or development project costs associated with any
and all potential future transactions in Michigan, Maryland, New York and Virginia through one or more sale-leaseback or similar transactions for a term of
seven years.
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The purchase price for the acquisition of the real estate assets of Black Hawk and Rock Island were as follows (in thousands):
Land
Building and improvements
Real estate investments, net
$
$
54,386
95,740
150,126
Prior year acquisitions
As described in Note 1, the Company acquired the real property assets of Live! Casino & Hotel Maryland, on December 29, 2021. The purchase
price allocation of these assets and liabilities based on their fair values at the acquisition date are summarized below (in thousands)
Investment in leases, financing receivables
Lease Liabilities
Total Purchase Price
$
$
1,213,896
(53,309)
1,160,587
The table above excludes the reserve for financing receivables of $12.2 million that was recorded through the Consolidated Statement of
Operations for the year ended December 31, 2021.
As previously discussed in Note 1, on June 3, 2021, the Company completed its previously announced transaction with Bally's in which the real
estate assets of Tropicana Evansville and Dover Downs Hotel & Casino were acquired. The purchase price allocation of these assets based on their fair
values at the acquisition date are summarized below (in thousands).
Land and improvements
Building and improvements
Real estate investments, net
Right-of-use assets and land rights, net
Lease liabilities
Total purchase price
$
$
219,579
201,430
421,009
101,813
(35,372)
487,450
7. Investment in leases, financing receivables, net
In connection with the Maryland Live! Lease that became effective on December 29, 2021 and the Pennsylvania Live! Master Lease that became
effective on March 1, 2022, the Company recorded an investment in leases, financing receivables, net, as the sale lease back transaction was accounted for
as a failed sale leaseback. The following is a summary of the balances of the Company's investment in leases, financing receivables (in thousands).
Minimum lease payments receivable
Estimated residual values of lease property (unguaranteed)
Gross investment in leases, financing receivables
Less: Unearned income
Less: Allowance for credit losses
Net Investment in leases, financing receivables
December 31,
2022
December 31,
2021
$
$
6,676,528 $
940,885
7,617,413
(5,695,094)
(19,124)
1,903,195 $
4,012,937
601,947
4,614,884
(3,400,988)
(12,226)
1,201,670
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The present value of the net investment in the lease payment receivable and unguaranteed residual value at December 31, 2022 was $1,871.5
million and $50.8 million, respectively compared to $1,178.0 million and $35.9 million, respectively at December 31, 2021.
At December 31, 2022, minimum lease payments owed to us for each of the five succeeding years under the Company's financing receivables
were as follows (in thousands):
Year ending December 31,
2023
2024
2025
2026
2027
Thereafter
Total
Future
Minimum
Lease Payments
127,222
$
129,286
131,532
133,816
136,141
6,018,531
$ 6,676,528
The Company follows ASC 326 “Credit Losses” (“ASC 326”), which requires that the Company measure and record current expected credit
losses (“CECL”), the scope of which includes our Investment in leases - financing receivables, net, which do not include any unfunded commitments. The
Company has elected to use an econometric default and loss rate model to estimate the allowance for credit losses, or CECL allowance. This model
requires us to calculate and input lease and property-specific credit and performance metrics which in conjunction with forward-looking economic
forecasts, project estimated credit losses over the life of the lease. The Company then records a CECL allowance based on the expected loss rate multiplied
by the outstanding investment in lease balance.
Expected losses within our cash flows are determined by estimating the PD and LGD of our Investment in leases - financing receivables, net. We
have engaged a nationally recognized data analytics firm to assist us with estimating both the PD and LGD. The PD and LGD are estimated during the
initial term of the leases. The PD and LGD estimates for the lease term were developed using current financial condition forecasts. The PD and LGD
predictive model was developed using the average historical default rates and historical loss rates, respectively, of over 100,000 commercial real estate
loans dating back to 1998 that have similar credit profiles or characteristics to the real estate underlying the Company's financing receivables. Management
will monitor the credit risk related to its financing receivable by obtaining the rent coverage on the lease on a periodic basis. The Company also monitors
legislative changes to assess whether it would have an impact on the underlying performance of its tenant. We are unable to use our historical data to
estimate losses as the Company has no loss history to date on its lease portfolio. Our tenants were current on all of their rental obligations as of
December 31, 2022 and December 31, 2021, respectively.
The change in the allowance for credit losses for the Company's financing receivables is illustrated below (in thousands):
Maryland Live!
Lease
Pennsylvania Live!
Master Lease
Total
Balance at December 31, 2021
Initial allowance from current period investments
Current period change in credit allowance
Ending balance at December 31, 2022
$
$
/82
12,226 $
—
(8,131)
4,095 $
— $
32,277
(17,248) $
15,029 $
12,226
32,277
(25,379)
19,124
The amortized cost basis of the Company's investment in leases, financing receivables by year of origination is shown below as of December 31,
2022 (in thousands):
Investment in leases, financing receivables
Allowance for credit losses
Amortized cost basis at December 31, 2022
Origination year
2022
695,855
(15,029)
680,826
$
$
2021
1,226,464
(4,095)
1,222,369
$
$
Total
1,922,319
(19,124)
1,903,195
$
$
Allowance as a percentage of outstanding financing receivable
(2.16)%
(0.33)%
(0.99)%
The Company recorded an initial allowance for credit losses of $32.3 million on the Pennsylvania Live! Master Lease which was originated on
March 1, 2022. During the year ended December 31, 2022, the Company received an updated earnings forecast from its tenant for the properties
comprising both the Maryland Live! Lease and the Pennsylvania Live! Master Lease. This resulted in improved rent coverage ratios in its reserve
calculation which led to a reduction in the required reserves for both financing receivables. The reason for the higher allowance for credit losses as a
percentage of the outstanding investment in leases for the Pennsylvania Live! Master Lease compared to the Maryland Live! Lease is primarily due to the
significantly higher rent coverage ratio on the Maryland Live! Lease compared to the Pennsylvania Live! Master Lease. Future changes in economic
probability factors and earnings assumptions at the underlying facilities may result in non-cash provisions or recoveries in future periods that could
materially impact our results of operations.
8. Lease Assets and Lease Liabilities
Lease Assets
The Company is subject to various operating leases as lessee for both real estate and equipment, the majority of which are ground leases related to
properties the Company leases to its tenants under triple-net operating leases. These ground leases may include fixed rent, as well as variable rent based
upon an individual property’s performance or changes in an index such as the CPI and have maturity dates ranging from 2028 to 2108, when considering
all renewal options. For certain of these ground leases, the Company’s tenants are responsible for payment directly to the third-party landlord. Under ASC
842, the Company is required to gross-up its consolidated financial statements for these ground leases as the Company is considered the primary obligor. In
conjunction with the adoption of ASU 2016-02 on January 1, 2019, the Company recorded right-of-use assets and related lease liabilities on its
Consolidated Balance Sheet to represent its rights to use the underlying leased assets and its future lease obligations, respectively, including for those
ground leases paid directly by our tenants. Because the right-of-use asset relates, in part, to the same leases which resulted in the land right assets the
Company recorded on its Consolidated Balance Sheet in conjunction with the Company's assumption of below market leases at the time it acquired the
related land and building assets, the Company is required to report the right-of-use assets and land rights in the aggregate on the Consolidated Balance
Sheet.
Land rights, net represent the Company's rights to land subject to long-term ground leases. The Company obtained ground lease rights through the
acquisition of several of its rental properties and immediately subleased the land to its tenants. These land rights represent the below market value of the
related ground leases. The Company assessed the acquired ground leases to determine if the lease terms were favorable or unfavorable, given market
conditions at the acquisition date. Because the market rents to be received under the Company's triple-net tenant leases were greater than the rents to be
paid under the acquired ground leases, the Company concluded that the ground leases were below market and were therefore required to be recorded as a
definite lived asset (land rights) on its books.
Components of the Company's right-of use assets and land rights, net are detailed below (in thousands):
Right-of-use assets - operating leases
Land rights, net
Right-of-use assets and land rights, net
December 31, 2022
December 31, 2021
$
$
181,243 $
652,824
834,067 $
183,136
668,683
851,819
/83
Land Rights
The land rights are amortized over the individual lease term of the related ground lease, including all renewal options, which ranged from 10 years
to 92 years at their respective acquisition dates. Land rights net, consist of the following:
Land rights
Less accumulated amortization
Land rights, net
December 31,
2022
December 31,
2021
$
$
(in thousands)
727,796 $
(74,972)
652,824 $
730,783
(62,100)
668,683
During the year ended December 31, 2022, the Company recorded $2.7 million of accelerated land right amortization as it donated a portion of the
land underlying a ground lease.
As of December 31, 2022, estimated future amortization expense related to the Company’s land rights by fiscal year is as follows (in thousands):
Year ending December 31,
2023
2024
2025
2026
2027
Thereafter
Total
$
$
13,159
13,159
13,159
13,159
13,159
587,029
652,824
Operating Lease Liabilities
At December 31, 2022, maturities of the Company's operating lease liabilities were as follows (in thousands):
Year ending December 31,
2023
2024
2025
2026
2027
Thereafter
Total lease payments
Less: interest
Present value of lease liabilities
$
$
$
13,567
13,516
13,463
13,467
12,996
597,698
664,707
(482,742)
181,965
.
Lease Expense
Operating lease costs represent the entire amount of expense recognized for operating leases that are recorded on the Consolidated Balance Sheets.
Variable lease costs are not included in the measurement of the lease liability and include both lease payments tied to a property's performance and changes
in an index such as the CPI that are not determinable at lease commencement, while short-term lease costs are costs for those operating leases with a term
of 12 months or less.
/84
The components of lease expense were as follows:
Year Ended December
31, 2022
Year Ended December
31, 2021
Operating lease cost
Variable lease cost
Short-term lease cost
Amortization of land right assets
Total lease cost
$
$
(in thousands)
13,477
19,755
2
15,859
49,093
$
$
12,959
9,075
947
15,616
38,597
Amortization expense related to the land right intangibles, as well as variable lease costs and the majority of the Company's operating lease costs
are recorded within land rights and ground lease expense in the consolidated statements of income. The Company's short-term lease costs as well as a small
portion of operating lease costs are recorded in both gaming, food, beverage and other expense and general and administrative expense in the consolidated
statements of income.
Supplemental Disclosures Related to Operating Leases
Supplemental balance sheet information related to the Company's operating leases was as follows:
Weighted average remaining lease term - operating leases
Weighted average discount rate - operating leases
December 31, 2022
51.09 years
6.6%
Supplemental cash flow information related to the Company's operating leases was as follows:
Cash paid for amounts included in the measurement of lease liabilities:
Operating cash flows from operating leases
(1)
Right-of-use assets obtained in exchange for new lease obligations:
Operating leases
Year Ended December
31, 2022
Year Ended December
31, 2021
(in thousands)
$
$
1,617
$
1,617
—
$
35,372
(1)
The Company's cash paid for operating leases is significantly less than the lease cost for the same period due to the majority of the Company's
ground lease rent being paid directly to the landlords by the Company's tenants. Although GLPI expends no cash related to these leases, they are required to
be grossed up in the Company's financial statements under ASC 842.
/85
Financing Lease Liabilities
In connection with the acquisition of the real property assets of Live! Casino & Hotel Maryland, the Company acquired the rights to land subject
to a long-term ground lease which expires on June 6, 2111. As the Maryland Live! Lease was accounted for as an Investment in lease, financing receivable,
the underlying ground lease was accounted for as a financing lease obligation within Lease liabilities on the Consolidated Balance Sheets. In accordance
with ASC 842, the Company records revenue for the ground lease rent paid by its tenant with an offsetting expense in interest expense as the Company has
concluded that as the lessee it is the primary obligor under the ground leases. The ground lease contains variable lease payments based on a percentage of
gaming revenues generated by the facility and has fixed minimum annual payments. The Company discounted the fixed minimum annual payments at
5.0% to arrive at the initial lease obligation. At December 31, 2022, maturities of this finance lease were as follows (in thousands):
Year ending December 31,
2023
2024
2025
2026
2027
Thereafter
Total lease payments
Less: Interest
Present value of finance lease liability
9. Fair Value of Financial Assets and Liabilities
$
$
$
2,222
2,244
2,267
2,289
2,313
302,058
313,393
(259,601)
53,792
Assets and Liabilities Measured at Fair Value on a Recurring Basis
The following methods and assumptions are used to estimate the fair value of each class of financial instruments for which it is practicable to
estimate:
Cash and Cash Equivalents
The fair value of the Company’s cash and cash equivalents approximates the carrying value of the Company’s cash and cash equivalents, due to
the short maturity of the cash equivalents.
Investment in leases, financing receivables, net
The fair value of the Company's net investment in leases, financing receivables, is based on the value of the underlying
real estate property the Company owns related to the Maryland Live! Lease and the Pennsylvania Live! Master Lease. The
initial fair value was the price paid by the Company to acquire the real estate. The initial fair value is then adjusted for changes
in the commercial real estate price index and as such is a Level 3 measurement as defined under ASC 820.
Deferred Compensation Plan Assets
The Company's deferred compensation plan assets consist of open-ended mutual funds and as such the fair value measurement of the assets is
considered a Level 1 measurement as defined under ASC 820. Deferred compensation plan assets are included within other assets on the Consolidated
Balance Sheets.
Long-term Debt
The fair value of the Senior Notes are estimated based on quoted prices in active markets and as such are Level 1 measurements as defined under
ASC 820. The fair value of the obligations in our Amended Credit Facility is based on indicative pricing from market information (Level 2 inputs).
/86
The estimated fair values of the Company’s financial instruments are as follows (in thousands):
Financial assets:
Cash and cash equivalents
Investment in leases, financing receivables, net
Deferred compensation plan assets
Financial liabilities:
Long-term debt:
Senior unsecured credit facility
Senior unsecured notes
December 31, 2022
December 31, 2021
Carrying
Amount
Fair
Value
Carrying
Amount
Fair
Value
$
239,083 $
239,083 $
724,595 $
1,903,195
27,387
1,900,971
27,387
1,201,670
34,549
724,595
1,213,896
34,549
—
6,175,000
—
5,715,963
424,019
6,175,000
424,019
6,645,574
Assets and Liabilities Measured at Fair Value on a Nonrecurring Basis
There were no assets or liabilities measured at fair value on a nonrecurring basis during the years ended December 31, 2022 and 2021.
10. Long-term Debt
Long-term debt, net of current maturities and unamortized debt issuance costs is as follows:
Unsecured revolver
Unsecured term loans A-2
Term Loan Credit Facility
$500 million 5.375% senior unsecured notes due November 2023
$400 million 3.350% senior unsecured notes due September 2024
$850 million 5.250% senior unsecured notes due June 2025
$975 million 5.375% senior unsecured notes due April 2026
$500 million 5.750% senior unsecured notes due June 2028
$750 million 5.300% senior unsecured notes due January 2029
$700 million 4.000% senior unsecured notes due January 2030
$700 million 4.000% senior unsecured notes due January 2031
$800 million 3.250% senior unsecured notes due January 2032
Other
Total long-term debt
Less: unamortized debt issuance costs, bond premiums and original issuance discounts
Total long-term debt, net of unamortized debt issuance costs, bond premiums and
original issuance discounts
$
$
$
December 31,
2022
December 31,
2021
(in thousands)
—
—
—
500,000
400,000
850,000
975,000
500,000
750,000
700,000
700,000
800,000
583
6,175,583
(47,115)
$
$
—
424,019
—
500,000
400,000
850,000
975,000
500,000
750,000
700,000
700,000
800,000
725
6,599,744
(47,372)
6,128,468
$
6,552,372
/87
The following is a schedule of future minimum repayments of long-term debt as of December 31, 2022 (in thousands):
2023
2024
2025
2026
2027
Over 5 years
Total minimum payments
$
$
500,149
400,156
850,164
975,114
—
3,450,000
6,175,583
Term Loan Credit Agreement
On September 2, 2022, GLP Capital entered into a term loan credit agreement (the “Term Loan Credit Agreement”) with Wells Fargo Bank,
National Association, as administrative agent (“Term Loan Agent”), and the other agents and lenders party thereto from time to time, providing for a
$600 million delayed draw credit facility with a maturity date of September 2, 2027 (the “Term Loan Credit Facility”). The Term Loan Credit Facility is
guaranteed by GLPI.
The availability of loans under the Term Loan Credit Facility is subject to customary conditions, including pro forma compliance with financial
covenants, and the receipt by Term Loan Agent of a conditional guarantee of the Term Loan Credit Facility by Bally’s on a secondary basis, subject to
enforcement of all remedies against GLP Capital, GLPI and all sources other than Bally’s. The loans under the Term Loan Credit Facility may be used
solely to finance a portion of the purchase price of the acquisition of one or more specified properties of Bally’s in one or a series of related transactions
(the “Acquisition”) and to pay fees, costs and expenses incurred in connection therewith. As described in Note 19, the Company drew down the entire $600
million Term Loan Credit Facility on January 3, 2023 in connection with the acquisition of the real property assets of Bally's Biloxi and Bally's Tiverton.
Subject to customary conditions, including pro forma compliance with financial covenants, GLP Capital can obtain additional term loan
commitments and incur incremental term loans under the Term Loan Credit Agreement, so long as the aggregate principal amount of all term loans
outstanding under the Term Loan Credit Facility does not exceed $1.2 billion plus up to $60 million of transaction fees and costs incurred in connection
with the Acquisition. There is currently no commitment in respect of such incremental loans and commitments.
Interest Rate and Fees
The interest rates per annum applicable to loans under the Term Loan Credit Facility are, at GLP Capital's option, equal to either a Secured
Overnight Financing Rate ("SOFR") based rate or a base rate plus an applicable margin, which ranges from 0.85% to 1.7% per annum for SOFR loans and
0.0% to 0.7% per annum for base rate loans, in each case, depending on the credit ratings assigned to the Term Loan Credit Facility. The current applicable
margin is 1.30% for SOFR loans and 0.30% for base rate loans. In addition, GLP Capital will pay a commitment fee on the unused commitments under the
Term Loan Credit Facility at a rate that ranges from 0.125% to 0.3% per annum, depending on the credit ratings assigned to the Credit Facility from time to
time. The current commitment fee rate is 0.25%.
Amortization and Prepayments
The Term Loan Credit Facility is not subject to interim amortization. GLP Capital is required to prepay outstanding term loans with 100% of the
net cash proceeds from the issuance of other debt that is unconditionally guaranteed by GLPI and conditionally guaranteed by Bally’s (“Alternative
Acquisition Debt”) that is received by GLPI, GLP Capital or any of their subsidiaries after the funding date of the Term Loan Facility (other than any
incremental term loans under the Term Loan Credit Agreement and loans under the Bridge Revolving Facility (as defined below)) except to the extent such
net cash proceeds are applied to repaying outstanding loans under the Bridge Revolving Facility. GLP Capital is not otherwise required to repay any loans
under the Term Loan Credit Facility prior to maturity. GLP Capital may prepay all or any portion of the loans under the Term Loan Credit Facility prior to
maturity without premium or penalty, subject to reimbursement of any SOFR breakage costs of the lenders, and may reborrow loans that it has repaid.
Unused commitments under the Term Loan Credit Facility automatically terminate on August 31, 2023.
/88
Certain Covenants and Events of Default
The Term Loan Credit Facility contains customary covenants that, among other things, restrict, subject to certain exceptions, the ability of GLPI
and its subsidiaries, including GLP Capital, to grant liens on their assets, incur indebtedness, sell assets, engage in acquisitions, mergers or consolidations,
or pay certain dividends and make other restricted payments. The financial covenants include the following, which are measured quarterly on a trailing
four-quarter basis: (i) maximum total debt to total asset value ratio, (ii) maximum senior secured debt to total asset value ratio, (iii) maximum ratio of
certain recourse debt to unencumbered asset value, and (iv) minimum fixed charge coverage ratio. GLPI is required to maintain its status as a REIT and is
permitted to pay dividends to its shareholders as may be required in order to maintain REIT status. GLPI is also permitted to make other dividends and
distributions, subject to pro forma compliance with the financial covenants and the absence of defaults. The Term Loan Credit Facility also contains certain
customary affirmative covenants and events of default. The occurrence and continuance of an event of default, which includes, among others, nonpayment
of principal or interest, material inaccuracy of representations and failure to comply with covenants, will enable the lenders to accelerate the loans and
terminate the commitments thereunder.
Senior Unsecured Credit Facility
The Company, through GLP Capital, historically had access to a senior unsecured credit facility (the "Amended Credit
Facility") consisting of a $1,175 million revolving credit facility and a $424 million Term Loan A-2 facility. The Amended
Credit Facility was scheduled to mature on May 21, 2023. On May 13, 2022, GLP Capital terminated its Amended Credit
Facility and entered into a credit agreement (the "Credit Agreement") providing for a $1.75 billion revolving credit facility (the
"Initial Revolving Credit Facility") maturing in May 2026, plus two six-month extensions at GLP Capital's option. GLP Capital
was the primary obligor under the Amended Credit Facility, which was guaranteed by GLPI and GLP Capital is the primary
obligor under the Credit Agreement, which is guaranteed by GLPI. The Company recorded a debt extinguishment loss of
$2.2 million in connection with this transaction.
On September 2, 2022, GLP Capital entered into Amendment No. 1 (the “Amendment”) to the Credit Agreement
among GLP Capital, Wells Fargo Bank, National Association, as administrative agent (“Agent”), and the several banks and
other financial institutions or entities party thereto. Pursuant to the Credit Agreement, as amended by the Amendment, GLP
Capital has the right, at any time until December 31, 2024, to elect to re-allocate up to $700 million in existing revolving
commitments under the Credit Agreement to a new revolving credit facility (the “Bridge Revolving Facility” and, collectively
with the Initial Revolving Credit Facility, the "Revolver").
Loans under the Bridge Revolving Facility are subject to 1% amortization per annum. Amounts repaid under the
Bridge Revolving Facility cannot be reborrowed and the corresponding commitments are automatically re-allocated to the
existing revolving facility under the Credit Agreement. GLP Capital is required to prepay the loans under the Bridge Revolving Facility with 100% of the
net cash proceeds from the issuance of Alternative Acquisition Debt that is received by GLPI, GLP
Capital or any of their subsidiaries (other than any term loans under the Term Loan Credit Agreement and any loans under the
Bridge Revolving Facility). Any outstanding commitments under the Bridge Revolving Facility that have not been borrowed by
December 31, 2024 are automatically re-allocated to the existing revolving facility under the Credit Agreement.
GLP Capital's ability to borrow under the Bridge Revolving Facility is subject to certain conditions including pro
forma compliance with GLP Capital's financial covenants, as well as the receipt by Agent of a conditional guarantee of the
loans under the Bridge Revolving Facility by Bally’s on a secondary basis, subject to enforcement of all remedies against GLP
Capital, GLPI and all sources other than Bally’s. Loans under the Bridge Revolving Facility will not be treated pro rata with
loans under the existing revolving credit facility.
At December 31, 2022, no amounts were outstanding under the Credit Agreement. Additionally, at December 31,
2022, the Company was contingently obligated under letters of credit issued pursuant to the Credit Agreement with face
amounts aggregating approximately $0.4 million, resulting in $1,749.6 million of available borrowing capacity under the Credit
Agreement as of December 31, 2022.
/89
The interest rates payable on the loans borrowed under the Revolver are, at GLP Capital's option, equal to either a
SOFR based rate or a base rate plus an applicable margin, which ranges from 0.725% to
1.40% per annum for SOFR loans and 0.0% to 0.4% per annum for base rate loans, in each case, depending on the credit ratings
assigned to the Credit Agreement. The current applicable margin is 1.05% for SOFR loans and 0.05% for base rate loans.
Notwithstanding the foregoing, in no event shall the base rate be less than 1.00%. In addition, GLP Capital will pay a facility
fee on the commitments under the revolving facility, regardless of usage, at a rate that ranges from 0.125% to 0.3% per annum,
depending on the credit rating assigned to the Credit Agreement from time to time. The current facility fee rate is 0.25%. The
Credit Agreement is not subject to interim amortization except with respect to the Bridge Revolving Facility. GLP Capital is
not required to repay any loans under the Credit Agreement prior to maturity except as set forth above with respect to the
Bridge Revolving Facility. GLP Capital may prepay all or any portion of the loans under the Credit Agreement prior to
maturity without premium or penalty, subject to reimbursement of any SOFR breakage costs of the lenders and may reborrow
loans that it has repaid.
The Amended Credit Facility contains customary covenants that, among other things, restrict, subject to certain exceptions, the ability of GLPI
and its subsidiaries to grant liens on their assets, incur indebtedness, sell assets, make investments, engage in acquisitions, mergers or consolidations or pay
certain dividends and other restricted payments. The Amended Credit Facility includes the following financial covenants, which are measured quarterly on
a trailing four-quarter basis: a maximum total debt to total asset value ratio, a maximum senior secured debt to total asset value ratio, a maximum ratio of
certain recourse debt to unencumbered asset value and a minimum fixed charge coverage ratio. In addition, GLPI is required to maintain a minimum
tangible net worth and its status as a REIT. GLPI is permitted to pay dividends to its shareholders as may be required in order to maintain REIT status,
subject to the absence of payment or bankruptcy defaults. GLPI is also permitted to make other dividends and distributions subject to pro forma compliance
with the financial covenants and the absence of defaults. The Amended Credit Facility also contains certain customary affirmative covenants and events of
default, including the occurrence of a change of control and termination of the PENN Master Lease (subject to certain replacement rights). The occurrence
and continuance of an event of default under the Amended Credit Facility will enable the lenders under the Amended Credit Facility to accelerate the loans
and terminate the commitments thereunder. At December 31, 2022, the Company was in compliance with all required financial covenants under the
Amended Credit Facility.
Senior Unsecured Notes
At December 31, 2022, the Company had an outstanding balance of $6,175.0 million of senior unsecured notes (the "Senior Notes").
On December 13, 2021, the Company issued $800 million of 3.25% senior unsecured notes due January 2032 at an issue price equal to 99.376%
of the principal amount. The proceeds were used to partially finance the Company's acquisition of certain real estate assets in the Cordish transaction.
In the first quarter of 2020, the Company redeemed all $215.2 million aggregate principal amount of the Company’s outstanding 4.875% senior
unsecured notes due in November 2020 and all $400 million aggregate principal amount of the Company’s outstanding 4.375% senior unsecured notes due
in April 2021, incurring a loss on the early extinguishment of debt related to the redemption of $17.3 million, primarily for call premium charges and debt
issuance write-offs.
On June 25, 2020, the Company issued $500 million of 4.00% senior unsecured notes due January 2031 at an issue price equal to 98.827% of the
principal amount to repay indebtedness under its Revolver. On August 18, 2020, the Company issued an additional $200 million of 4.00% senior unsecured
notes due January 2031 at an issue price equal to 103.824% of the principal amount to repay Term Loan A-1 indebtedness, incurring a loss on the early
extinguishment of debt of $0.8 million, related to debt issuance write-offs. These bond offerings extended the maturities of our long-term debt.
/90
The Company may redeem the Senior Notes of any series at any time, and from time to time, at a redemption price of 100% of the principal
amount of the Senior Notes redeemed, plus a "make-whole" redemption premium described in the indenture governing the Senior Notes, together with
accrued and unpaid interest to, but not including, the redemption date, except that if Senior Notes of a series are redeemed 90 or fewer days prior to their
maturity, the redemption price will be 100% of the principal amount of the Senior Notes redeemed, together with accrued and unpaid interest to, but not
including, the redemption date. If GLPI experiences a change of control accompanied by a decline in the credit rating of the Senior Notes of a particular
series, the Company will be required to give holders of the Senior Notes of such series the opportunity to sell their Senior Notes of such series at a price
equal to 101% of the principal amount of the Senior Notes of such series, together with accrued and unpaid interest to, but not including, the repurchase
date. The Senior Notes also are subject to mandatory redemption requirements imposed by gaming laws and regulations.
The Senior Notes were issued by GLP Capital, L.P. and GLP Financing II, Inc. (the "Issuers"), two consolidated subsidiaries of GLPI, and are
guaranteed on a senior unsecured basis by GLPI. The guarantees of GLPI are full and unconditional. The Senior Notes are the Issuers' senior unsecured
obligations and rank pari passu in right of payment with all of the Issuers' senior indebtedness, including the Amended Credit Facility, and senior in right
of payment to all of the Issuers' subordinated indebtedness, without giving effect to collateral arrangements.
The Senior Notes contain covenants limiting the Company’s ability to: incur additional debt and use its assets to secure debt; merge or consolidate
with another company; and make certain amendments to the PENN Master Lease. The Senior Notes also require the Company to maintain a specified ratio
of unencumbered assets to unsecured debt. These covenants are subject to a number of important and significant limitations, qualifications and exceptions.
At December 31, 2022, the Company was in compliance with all required financial covenants under its Senior Notes.
11. Commitments and Contingencies
Litigation
The Company is subject to various legal and administrative proceedings relating to personal injuries, employment matters, commercial
transactions, and other matters arising in the normal course of business. The Company does not believe that the final outcome of these matters will have a
material adverse effect on the Company’s consolidated financial position or results of operations. In addition, the Company maintains what it believes is
adequate insurance coverage to further mitigate the risks of such proceedings. However, such proceedings can be costly, time consuming, and unpredictable
and, therefore, no assurance can be given that the final outcome of such proceedings may not materially impact the Company’s financial condition or
results of operations. Further, no assurance can be given that the amount or scope of existing insurance coverage will be sufficient to cover losses arising
from such matters.
Employee Benefit Plans
The Company maintains a defined contribution plan under the provisions of Section 401(k) of the Internal Revenue Code of 1986, as amended,
which covers all eligible employees. The plan enables participating employees to defer a portion of their salary and/or their annual bonus in a retirement
fund to be administered by the Company. The Company makes a discretionary match contribution of 50% of employees' elective salary deferrals, up to a
maximum of 6% of eligible employee compensation. The matching contributions for the defined contribution plan were $0.1 million for the year ended
December 31, 2022, and $0.3 million for each of the years ended December 31, 2021 and 2020.
The Company maintains a non-qualified deferred compensation plan that covers most management and other highly-compensated employees. The
plan allows the participants to defer, on a pre-tax basis, a portion of their base annual salary and/or their annual bonus, and earn tax-deferred earnings on
these deferrals. The plan also provides for matching Company contributions that vest over a five-year period. The Company has established a Trust, and
transfers to the Trust, on a periodic basis, an amount necessary to provide for its respective future liabilities with respect to participant deferral and
Company contribution amounts. The Company's matching contributions for the non-qualified deferred compensation plan for the years ended
December 31, 2022, 2021 and 2020 were $0.5 million, $0.5 million, and $0.7 million , respectively. The Company's deferred compensation liability, which
was included in other liabilities within the Consolidated Balance Sheets, was $25.8 million and $33.8 million at December 31, 2022 and 2021, respectively.
Assets held in the Trust were $27.4 million and $34.5 million at December 31, 2022 and 2021, respectively, and are included in other assets within the
Consolidated Balance Sheets.
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12. Revenue Recognition
Revenues from Real Estate
As of December 31, 2022, 19 of the Company’s real estate investment properties were leased to a subsidiary of PENN under the PENN Master
Lease, an additional 12 of the Company's real estate investment properties were leased to a subsidiary of PENN under the Amended Pinnacle Master Lease,
6 of the Company's real estate investment properties were leased to a subsidiary of Caesars under the Second Amended and Restated Caesars Master Lease,
3 of the Company's real estate investment properties were leased to a subsidiary of Boyd under the Boyd Master Lease, 6 of the Company's real estate
investment properties were leased to a subsidiary of Bally's under the Bally's Master Lease, 2 of the Company's real estate investment properties were
leased to a subsidiary of Cordish under the Pennsylvania Live! Master Lease and 2 of the Company's real estate properties were leased to a subsidiary of
Casino Queen under the Casino Queen Master Lease. Additionally, the Meadows real estate assets and Perryville real estate assets are leased to PENN
pursuant to the Meadows Lease and Perryville Lease, respectively, and the land under PENN's Hollywood Casino Morgantown is subject to the
Morgantown Lease. Finally, the Company has single property triple net leases with Caesars under the Horseshoe St. Louis Lease, Boyd under the Belterra
Park Lease, Bally's under the Tropicana Lease and Cordish under the Maryland Live! Lease.
Guarantees
The obligations under the PENN Master Lease, Amended Pinnacle Master Lease and Morgantown Lease, as well as the Meadows Lease and
Perryville Lease are guaranteed by PENN and, with respect to each lease, jointly and severally by PENN's subsidiaries that occupy and operate the facilities
covered by such lease. Similarly, the obligations under the Second Amended and Restated Caesars Master Lease, the Casino Queen Master Lease and
Bally's Master Lease are jointly and severally guaranteed by the parent company and by the subsidiaries that occupy and operate the leased facilities. The
obligations under the Boyd Master Lease are jointly and severally guaranteed by Boyd's subsidiaries that occupy and operate the facilities leased under the
Boyd Master Lease. The obligations under the Maryland Live! Lease and the Pennsylvania Live! Master Lease are guaranteed by the Cordish subsidiaries
that operate the facilities.
Rent
The rent structure under the PENN Master Lease includes a fixed component, a portion of which is subject to an annual 2% escalator if certain
rent coverage ratio thresholds are met, and a component that is based on the performance of the facilities, which is prospectively adjusted, subject to certain
floors (namely the Hollywood Casino at Penn National Race Course property due to PENN's opening of a competing facility) (i) every five years to an
amount equal to 4% of the average net revenues of all facilities under the PENN Master Lease (other than Hollywood Casino Columbus and Hollywood
Casino Toledo) during the preceding five years in excess of a contractual baseline, and (ii) monthly by an amount equal to 20% of the net revenues of
Hollywood Casino Columbus and Hollywood Casino Toledo during the preceding month in excess of a contractual baseline, although Hollywood Casino
Toledo has a monthly percentage rent floor which equaled $22.9 million annually due to PENN's acquisition of a competing facility, Greektown Casino-
Hotel in Detroit, Michigan.
As described in Note 18, a new master lease was recently entered into with PENN. PENN's Hollywood Casino Toledo Property was moved to this
new lease, and as such, the percentage rent previously associated with this property, along with the other properties that were moved to the new lease, are
no longer applicable.
Similar to the PENN Master Lease, the Amended Pinnacle Master Lease also includes a fixed component, a portion of which is subject to an
annual 2% escalator if certain rent coverage ratio thresholds are met and a component that is based on the performance of the facilities, which is
prospectively adjusted, subject to certain floors (namely the Bossier City Boomtown property due to PENN's acquisition of a competing facility,
Margaritaville Resort Casino), every two years to an amount equal to 4% of the average net revenues of all facilities under the Amended Pinnacle Master
Lease during the preceding two years in excess of a contractual baseline.
On July 23, 2020, the Amended and Restated Caesars Master Lease became effective as described more fully in Note 1. This modification was
accounted for as a new lease which the Company concluded continued to meet the criteria for operating lease treatment. As a result, the existing deferred
revenue at the time of the amendment is being recognized over the Amended and Restated Caesars Master Lease's new initial lease term, which now
expires in September 2038. The Company concluded the renewal options of up to an additional 20 years at the tenants' option are not reasonably certain of
being exercised as failure to renew would not result in a significant penalty to the tenant. In the fifth and sixth lease years the building base rent escalates at
1.25%. In the seventh and eighth lease years it escalates at 1.75% and then escalates at 2% in the ninth lease year and each lease year thereafter. In addition,
the guaranteed fixed escalations in the new initial lease term are recognized on a straight line basis.
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On December 18, 2020, following the receipt of required regulatory approvals, the Company and Caesars completed an Exchange Agreement with
subsidiaries of Caesars in which Caesars transferred to the Company the real estate assets of Waterloo and Bettendorf in exchange for the transfer by the
Company to Caesars of the real property assets of Tropicana Evansville, plus a cash payment of $5.7 million. The Waterloo and Bettendorf facilities were
added to the Second Amended and Restated Caesars Master Lease and the rent was increased by $520,000 annually. This Exchange Transaction resulted in
a reconsideration of the Second Amended and Restated Caesars Master Lease which resulted in the continuation of operating lease treatment for accounting
classification purposes. Additionally, a non cash gain of $41.4 million was recorded in other income which reflected the fair value of the Waterloo and
Bettendorf facilities which exceeded the net book value of the Tropicana Evansville property and the $5.7 million payment at the date of the exchange.
The Boyd Master Lease includes a fixed component, a portion of which is subject to an annual 2% escalator if certain rent coverage ratio
thresholds are met, and a component that is based on the performance of the facilities, which is adjusted, every two years to an amount equal to 4% of the
average annual net revenues of all facilities under the Boyd Master Lease during the preceding two years in excess of a contractual baseline.
In May 2020, the Company acquired the real estate of Belterra Park in satisfaction of the Belterra Park Loan, subject to the Belterra Park Lease
with a Boyd affiliate operating the property. The Belterra Park Lease rent terms are consistent with the Boyd Master Lease. The annual rent is comprised of
a fixed component, part of which is subject to an annual escalator of up to 2% if certain rent coverage ratio thresholds are met and a component that is
based on the performance of the facilities which is adjusted, every two years to an amount equal to 4% of the average annual net revenues of Belterra Park
during the preceding two years in excess of a contractual baseline.
On September 29, 2020, the Company acquired the real estate of Horseshoe St. Louis in satisfaction of the CZR loan, subject to the Horseshoe St.
Louis Lease, the initial term of which expires on October 31, 2033, with 4 separate renewal options of five years each, exercisable at the tenants' option.
The Horseshoe St. Louis Lease's rent terms were adjusted on December 1, 2021 such that the annual escalator is now fixed at 1.25% for the second through
fifth lease years, increasing to 1.75% for the sixth and seventh lease years and thereafter increasing by 2.0% for the remainder of the lease.
The Meadows Lease contains a fixed component, subject to annual escalators, and a component that is based on the performance of the facility,
which is reset every two years to an amount determined by multiplying (i) 4% by (ii) the average annual net revenues of the facility for the trailing two-
year period. The Meadows Lease contains an annual escalator provision for up to 5% of the base rent, if certain rent coverage ratio thresholds are met,
which remains at 5% until the earlier of ten years or the year in which total rent is $31.0 million, at which point the escalator will be reduced to 2%
annually thereafter. As described in Note 18, the Meadows Lease was terminated during 2023 and the real estate associated with the property became part
of a new master lease with PENN.
The Morgantown Lease became effective on October 1, 2020 whereby the Company is leasing the land under PENN's gaming facility under
construction for an initial cash rent of $3.0 million, provided, however, that (i) on the opening date and on each anniversary thereafter the rent shall be
increased by 1.5% annually (on a prorated basis for the remainder of the lease year in which the gaming facility opens) for each of the following three lease
years and (ii) commencing on the fourth anniversary of the opening date and for each anniversary thereafter, (a) if the CPI increase is at least 0.5% for any
lease year, the rent for such lease year shall increase by 1.25% of rent as of the immediately preceding lease year, and (b) if the CPI increase is less than
0.5% for such lease year, then the rent shall not increase for such lease year.
The initial rent under the Casino Queen Master Lease is $21.4 million and such amount increases annually by 0.5% for the first six years.
Beginning with the seventh lease year through the remainder of the lease term, if the CPI increases by at least 0.25% for any lease year then annual rent
shall be increased by 1.25%, and if the CPI increase is less than 0.25% then rent will remain unchanged for such lease year. The Company will also
complete the current landside development project that is in process and rent under the Casino Queen Master Lease will be adjusted to reflect a yield of
8.25% on GLPI's project costs.
The Perryville Lease that became effective on July 1, 2021 has an initial annual rent of $7.77 million, $5.83 million of which will be subject to
escalation provisions beginning in the second lease year through the fourth lease year and increasing by 1.50% during such period and then increasing by
1.25% for the remaining lease term. The escalation provisions beginning in the fifth lease year are subject to the CPI being at least 0.5% for the preceding
lease year. As described in Note 18, the Perryville Lease was terminated during 2023, and the real estate associated with the property became part of a new
master lease with PENN.
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The Bally's Master Lease became effective on June 3, 2021 and rent was $40 million annually at inception subject to contractual escalations based
on the CPI, with a 1% floor and 2% ceiling, subject to the CPI meeting a 0.5% threshold. On April 1, 2022, the Company completed the previously
announced acquisition from Bally's of the land and real estate assets of Bally's three Black Hawk Casinos in Black Hawk, Colorado and Bally's Quad Cities
Casino & Hotel in Rock Island, Illinois for $150 million in total consideration. These properties were added to the existing Bally's Master Lease and the
initial rent for the lease was increased by $12.0 million on an annual basis, subject to the escalation clauses described above.
On December 29, 2021, the Maryland Live! Lease with Cordish became effective, with annual rent of $75 million which increases by 1.75% upon
the second anniversary of the lease commencement. The Pennsylvania Live! Master Lease with Cordish became effective March 1, 2022 with annual rent
of $50 million initially, which also increases by 1.75% upon the second anniversary of the lease commencement. These leases were accounted for as an
Investment in leases, financing receivables. See Note 7 for the further information including the future annual cash payments to be received under these
leases.
On September 26, 2022, the Tropicana Las Vegas Lease, which has initial annual rent of $10.5 million, became effective. Commencing on the first
anniversary and on each anniversary thereafter, if the CPI increase is at least 0.5% for any lease year, the rent shall increase by the greater of 1% of the rent
in effect for the preceding lease year and the CPI increase, capped at 2%. If the CPI increase is less than 0.5% for such lease year, then the rent shall not
increase for such lease year.
Furthermore, the Company's master leases that contain variable rent provide for a floor on such rent, should the Company's tenants acquire or
commence operating a competing facility within a restricted area (typically 60 miles from a property under the existing master lease with such tenant).
These clauses provide landlord protections by basing the percentage rent floor for any affected facility on the net revenues of such facility for the calendar
year immediately preceding the year in which the competing facility is acquired or first operated by the tenant. A percentage rent floor was triggered on
PENN's Hollywood Casino Toledo property, as a result of PENN's purchase of the operations of the Greektown Casino-Hotel in Detroit, Michigan and a
percentage rent floor on the Amended Pinnacle Master Lease was triggered on the Bossier City Boomtown property due to PENN's acquisition of
Margaritaville Resort Casino. Additionally, a percentage rent floor was triggered on the Hollywood Casino at Penn National Race Course in connection
with PENN opening a facility in York, Pennsylvania which will go into effect at the next reset.
Costs
In addition to rent, as triple-net lessees, all of the Company's tenants are required to pay the following executory costs: (1) all facility maintenance,
(2) all insurance required in connection with the leased properties and the business conducted on the leased properties, including coverage of the landlord's
interests, (3) taxes levied on or with respect to the leased properties (other than taxes on the income of the lessor) and (4) all utilities and other services
necessary or appropriate for the leased properties and the business conducted on the leased properties.
Lease terms
During 2022, the PENN Master Lease required an accounting reassessment due to a lease amendment resulting in a lease modification for
accounting purposes. The Company concluded the lease term should end at the current lease expiration date of October 31, 2033 and not include any of the
three remaining renewal terms of 5 years each. This was due to several factors that were not present at the inception of the original PENN Master Lease.
Since the formation of the Company on November 1, 2013, the Company has amended and reassessed four of its nine leases that were originated prior to
2021. All four of these reassessments were done before the completion of their initial lease terms and were the result of significant lease amendments.
Additionally, Pinnacle sold its operations to PENN for fair value whose underlying real estate for the casino operations were leased from the Company.
PENN has significantly diversified its earnings stream since the inception of the PENN Master Lease such that the leased operations in the PENN Master
Lease no longer represent substantially all of PENN's revenues and earnings. We believe all these factors preclude the Company from concluding all
renewal periods are reasonably assured to be exercised in the PENN Master Lease.
The Casino Queen Master Lease became effective December 17, 2021 and required an accounting reassessment due to changes in the rent and
lease terms. The Company concluded the lease term is limited to its initial 15 year term. This was due to several factors that were not present at the
inception of the original Casino Queen Lease. Since the formation of the Company on November 1, 2013, the Company has reassessed four of its nine
leases that were originated prior to 2021. All four of these reassessments were done before the completion of their original initial lease terms. Finally,
additional competitive threats have emerged in the regional markets for the properties in the Casino Queen Master Lease that were not present previously,
particularly in the state of Illinois with respect to additional competitive pressures from video gaming terminals that
/94
have rapidly expanded in the state and continue to take market share from land based casinos. We believe all these factors preclude the Company from
concluding all renewal periods are reasonably assured to be exercised in the Casino Queen Master Lease.
On October 15, 2018, in conjunction with the PENN-Pinnacle Merger, the Pinnacle Master Lease was amended by a fourth amendment to allow
for the sale of the operating assets of Ameristar Casino Hotel Kansas City, Ameristar Casino Resort Spa St. Charles and Belterra Casino Resort from
Pinnacle to Boyd. As a result of this amendment, the Company reassessed the lease's classification and determined the Amended Pinnacle Master Lease
qualified for operating lease treatment under ASC 840. Therefore, subsequent to the PENN-Pinnacle Merger, the Amended Pinnacle Master Lease is
treated as an operating lease in its entirety. Because the properties under the Amended Pinnacle Master Lease did not represent a meaningful portion of
PENN's business at the time PENN assumed the Amended Pinnacle Master Lease, the Company concluded that the lease term of the Amended Pinnacle
Master Lease is 10 years, equal to the initial 10-year term only.
In connection with PENN exercising its first renewal option on October 1, 2020, the Company reassessed the Amended Pinnacle Master Lease as
the lease term now concludes on May 1, 2031. The Company continued to conclude that each individual lease component within the Amended Pinnacle
Master Lease meets the definition of an operating lease. The deferred rent and fixed minimum lease payments at October 1, 2020 are being recognized on a
straight-line basis over the new initial lease term ending on May 1, 2031.
Because the Meadows Lease is a single property lease operated by a large multi-property operator, GLPI concluded it was not reasonably assured
at lease inception that the operator would elect to exercise any lease renewal options. Therefore, the Company concluded that the lease term of the
Meadows Lease is 10 years, equal to the initial 10-year term only. In conjunction with the PENN-Pinnacle Merger, PENN assumed the Meadows Lease
from Pinnacle. The accounting for the Meadows Lease, including the lease term was not impacted by the change in tenant. Based upon similar fact patterns,
the Company concluded it was not reasonably assured at lease inception that Caesars or Boyd would elect to exercise all lease renewal options under the
Caesars Master Lease and the Boyd Master Lease as the earnings from these properties did not represent a meaningful portion of either tenant's business at
lease inception; therefore, the Company concluded that the lease term of the Amended and Restated Caesars Master Lease was its remaining initial lease
term which was extended by 5 years when the Amended and Restated Caesars Master Lease became effective on July 23, 2020 and the lease term of the
Boyd Master Lease is 10 years, equal to the initial term of such master lease.
The Belterra Park Lease, Morgantown Lease, Maryland Live! Lease, Tropicana Lease, Horseshoe St. Louis Lease and the Perryville Lease are
single property leases operated by large-multi-property operators and as such the Company concluded it was not reasonably assured at lease inception that
the operator would elect to exercise any renewal options; as such the lease term of these leases is equal to their initial terms.
/95
Details of the Company's rental income for the year ended December 31, 2022 was as follows (in thousands):
Building base rent
(1)
Land base rent
Percentage rent
Total cash rental income
Straight-line rent adjustments
Ground rent in revenue
Accretion on financing receivables
Other rental revenue
Total rental income
Year Ended December
31, 2022
$
$
$
897,666
210,394
146,266
1,254,326
4,294
33,034
19,442
589
1,311,685
(1)
Building base rent is subject to the annual rent escalators described above.
As of December 31, 2022, the future minimum rental income from the Company's rental properties under non-cancelable operating leases,
including any reasonably assured renewal periods, was as follows (in thousands):
Year ending December 31,
2023
2024
2025
2026
2027
Thereafter
Total
Future Rental
Payments
Receivable
Straight-Line Rent
Adjustments
Future Base
Ground Rents
Receivable
Future Income to be
Recognized Related to
Operating Leases
$
$
1,114,814 $
1,053,793
1,035,915
969,624
928,792
5,903,599
11,006,537 $
17,316 $
49,139
47,529
43,161
38,731
128,898
324,774 $
11,948 $
11,951
11,953
11,130
10,253
56,979
114,214 $
1,144,078
1,114,883
1,095,397
1,023,915
977,776
6,089,476
11,445,525
The table above presents the cash rent the Company expects to receive from its tenants, offset by adjustments to recognize this rent on a straight-
line basis over the lease term. The Company also includes the future non-cash revenue it expects to recognize from the fixed portion of tenant paid ground
leases in the table above. For further details on these tenant paid ground leases, refer to Note 8.
The Company may periodically loan funds to casino owner-operators for the purchase of real estate. Interest income related to real estate loans is
recorded as revenue from real estate within the Company's consolidated statements of income in the period earned. No loans were outstanding during the
year ended December 31, 2022 and 2021.
Gaming, Food, Beverage and Other Revenues
Prior to the sale of operations of the TRS Properties in 2021, gaming revenue generated by the TRS Properties mainly consisted of revenue from
slot machines, and to a lesser extent, table game and poker revenue. Gaming revenue was recognized net of certain sales incentives, including promotional
allowances in accordance with ASC 606. The Company also deferred a portion of the revenue received from customers (who participated in the points-
based loyalty programs) at the time of play until a later period when the points were redeemed or forfeited. Other revenues at our TRS Properties were
derived from our dining, retail and certain other ancillary activities. During the years ended December 31, 2021 and 2020, the Company recognized
gaming, food, beverage and other revenue of $109.7 million, and $103.0 million, respectively.
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13. Stock-Based Compensation
As of December 31, 2022, the Company had 2,691,433 shares available for future issuance under the Amended 2013 Long Term Incentive
Compensation Plan (the "2013 Plan"). The 2013 Plan provides for the Company to issue restricted stock awards, including performance-based restricted
stock awards and other equity or cash based awards to employees. Any director, employee or consultant shall be eligible to receive such awards. The
Company issues new authorized common shares to satisfy stock option exercises and restricted stock award releases.
As of December 31, 2022, there was $3.6 million of total unrecognized compensation cost for restricted stock awards that will be recognized over
the grants' remaining weighted average vesting period of 1.73 years. For the years ended December 31, 2022, 2021 and 2020, the Company recognized
$7.9 million, $7.2 million and $9.3 million, respectively, of compensation expense associated with these awards. The total fair value of awards released
during the years ended December 31, 2022, 2021 and 2020, was $12.0 million, $9.9 million and $13.7 million, respectively.
The following table contains information on restricted stock award activity for the years ended December 31, 2022 and 2021:
Outstanding at December 31, 2020
Granted
Released
Canceled
Outstanding at December 31, 2021
Granted
Released
Canceled
Outstanding at December 31, 2022
Number of
Award
Shares
Weighted Average
Grant-Date Fair
Value
252,560 $
237,492 $
(233,539) $
(1,849) $
254,664 $
238,013 $
(244,426) $
(1,200) $
247,051 $
38.72
29.82
27.07
40.99
41.10
35.58
31.06
45.64
45.68
Performance-based restricted stock awards have a three-year cliff vesting with the amount of restricted shares vesting at the end of the three-year
period determined based upon the Company’s performance as measured against its peers. More specifically, the percentage of shares vesting at the end of
the measurement period will be based on the Company’s three-year total shareholder return measured against the three-year total shareholder return of the
companies included in the MSCI US REIT index and the Company's stock performance ranking among a group of triple-net REIT peer companies. As of
December 31, 2022, there was $14.0 million of total unrecognized compensation cost for performance-based restricted stock awards, which will be
recognized over the awards' remaining weighted average vesting period of 1.73 years. For the years ended December 31, 2022, 2021 and 2020, the
Company recognized $12.5 million, $9.6 million and $10.7 million, respectively, of compensation expense associated with these awards. The total fair
value of performance-based stock awards released during the years ended December 31, 2022, 2021, and 2020 was $18.5 million, $14.9 million, and $23.4
million respectively.
/97
The following table contains information on performance-based restricted stock award activity for the years ended December 31, 2022 and 2021:
Outstanding at December 31, 2020
Granted
Released
Canceled
Outstanding at December 31, 2021
Granted
Released
Canceled
Outstanding at December 31, 2022
Number of Performance-Based
Award Shares
Weighted Average
Grant-Date Fair Value
20.72
24.89
20.64
—
22.27
30.59
17.85
17.85
26.55
1,193,994 $
478,000 $
(366,888) $
— $
1,305,106
500,000 $
(380,070) $
(30,816) $
1,394,220
14. Income Taxes
The Company elected on its U.S. federal income tax return for its taxable year that began on January 1, 2014 to be treated as a REIT and GLPI,
together with its indirect wholly-owned subsidiary, GLP Holdings, Inc., jointly elected to treat each of GLP Holdings, Inc. Louisiana Casino Cruises, Inc.
(d/b/a Hollywood Casino Baton Rouge) and Penn Cecil Maryland, Inc. (d/b/a Hollywood Casino Perryville) as a TRS effective on the first day of the first
taxable year of GLPI as a REIT. The benefits of the intended REIT conversion on the Company's tax provision and effective income tax rate are reflected in
the tables below. Deferred tax assets and liabilities are provided for the effects of temporary differences between the tax basis of an asset or liability and its
reported amount in the Consolidated Balance Sheets. These temporary differences result in taxable or deductible amounts in future years. As a result of the
Tax Cuts and Jobs Act, the corporate tax rate was permanently lowered from the previous maximum rate of 35% to 21%, effective for tax years including
or commencing January 1, 2018. As of December 31, 2022, the Company no longer has activity in its TRS nor does it have deferred tax assets.
The components of the Company's deferred tax assets and liabilities as of December 31, 2021 are as follows:
Year ended December 31,
Deferred tax assets:
Property and equipment
Interest expense
Net operating losses
Gross deferred tax assets
Less: valuation allowance
Net deferred tax assets
2021
(in thousands)
$
11
2,730
748
3,489
(3,489)
—
The carrying amounts of deferred tax assets were reduced by a valuation allowance if, based on the available evidence, it was more likely than not
that such assets will not be realized. In assessing the requirement for, and amount of, a valuation allowance in accordance with the more likely than not
standard for all periods, the Company gave appropriate consideration to all positive and negative evidence related to the realization of the deferred tax
assets.
As of December 31, 2021, the valuation allowance was associated mainly with net operating losses, disallowed interest expense carryforward, and
other additional deferred tax assets. Deferred tax assets, net are included within other assets on the Consolidated Balance Sheets.
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The provision for income taxes charged to operations for years ended December 31, 2022, 2021 and 2020 was as follows:
Year ended December 31,
Current tax expense
Federal
State
Total current
Deferred tax (benefit) expense
Federal
State
Total deferred
Total provision
2022
2021
(in thousands)
2020
$
$
14,653 $
2,402
17,055
—
—
—
17,055 $
16,363 $
6,653
23,016
3,534
1,792
5,326
28,342 $
1,111
2,315
3,426
467
(16)
451
3,877
The following tables reconcile the statutory federal income tax rate to the actual effective income tax rate for the years ended December 31, 2022,
2021 and 2020:
Year ended December 31,
Percent of pretax income
U.S. federal statutory income tax rate
Deferred tax impact of TRS tax-free liquidation
State and local income taxes
Valuation allowance
REIT conversion benefit
Permanent differences
Other miscellaneous items
Year ended December 31,
Amount based upon pretax income
U.S. federal statutory income tax
Deferred tax impact of TRS tax-free liquidation
State and local income taxes
Valuation allowance
REIT conversion benefit
Permanent differences
Other miscellaneous items
2022
2021
2020
21.0 %
— %
0.4 %
(0.5)%
(19.2)%
0.7 %
— %
2.4 %
2022
2021
(in thousands)
21.0 %
2.3 %
0.7 %
0.3 %
(19.3)%
— %
— %
5.0 %
2020
21.0 %
— %
0.4 %
0.3 %
(21.0)%
— %
0.1 %
0.8 %
$
$
151,271 $
—
2,402
(3,489)
(138,151)
5,006
16
17,055 $
118,110 $
13,036
3,763
1,758
(108,315)
11
(21)
28,342 $
107,013
—
1,955
1,731
(106,839)
16
1
3,877
The Company is still subject to federal income tax examinations for its years ended December 31, 2019 and forward.
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15. Earnings Per Share
The following table reconciles the weighted-average common shares outstanding used in the calculation of basic EPS to the weighted-average
common shares outstanding used in the calculation of diluted EPS for the years ended December 31, 2022, 2021 and 2020:
Determination of shares:
Weighted-average common shares outstanding
Assumed conversion of restricted stock awards
Assumed conversion of performance-based restricted stock awards
Diluted weighted-average common shares outstanding
Year Ended December 31,
2022
2021
2020
(in thousands)
252,716
159
971
253,846
235,472
153
606
236,231
218,817
76
880
219,773
The following table presents the calculation of basic and diluted EPS for the Company’s common stock for the years ended December 31, 2022,
2021 and 2020:
Calculation of basic EPS:
Net income attributable to common shareholders
Less: Net income allocated to participating securities
Net income for earnings per share purposes
Weighted-average common shares outstanding
Basic EPS
Calculation of diluted EPS:
Net income attributable to common shareholders
Diluted weighted-average common shares outstanding
Diluted EPS
Year Ended December 31,
2022
2021
2020
(in thousands, except per share data)
$
$
$
$
$
684,653 $
(432)
684,221 $
252,716
2.71 $
534,047 $
(346)
533,701 $
235,472
2.27 $
684,653 $
253,846
2.70 $
534,047 $
236,231
2.26 $
505,711
(583)
505,128
218,817
2.31
505,711
219,773
2.30
Antidilutive securities excluded from the computation of diluted earnings per share
—
70
—
16. Equity
Common Stock
On July 1, 2022, the Company issued 7,935,000 shares of its common stock, generating net proceeds of approximately
$350.8 million.
On August 14, 2019, the Company commenced a continuous equity offering under which the Company may sell up to an aggregate of $600
million of its common stock from time to time through a sales agent in "at the market" offerings (the "2019 ATM Program"). Actual sales will depend on a
variety of factors, including market conditions, the trading price of the Company's common stock and determinations of the appropriate sources of funding.
The Company may sell the shares in amounts and at times to be determined by the Company, but has no obligation to sell any of the shares in the 2019
ATM Program. The 2019 ATM Program also allows the Company to enter into forward sale agreements. In no event will the aggregate number of shares
sold under the 2019 ATM Program (whether under any forward sale agreement or through a sales agent), have an aggregate sales price in excess of $600
million. The Company expects, that if it enters into a forward sale contract, to physically settle each forward sale agreement with the forward purchaser on
one or more dates specified by the Company prior to the maturity date of that particular forward sale agreement, in which case the aggregate net cash
proceeds at settlement will equal the number of shares underlying the particular forward sale agreement multiplied by the relevant forward sale price.
However, the Company may also elect to cash settle or net share settle a particular forward sale agreement, in which case proceeds may or may not be
received or cash may be owed to the forward purchaser.
/100
In connection with the 2019 ATM Program, the Company engaged a sales agent who may receive compensation of up to 2% of the gross sales
price of the shares sold. Similarly, in the event the Company enters into a forward sale agreement, it will pay the relevant forward seller a commission of up
to 2% of the sales price of all borrowed shares of common stock sold during the applicable selling period of the forward sale agreement.
During the year ended December 31, 2022, GLPI sold 5,206,499 of its common stock at an average price of $50.32 per share under the 2019 ATM
Program, which generated net proceeds of approximately $260.8 million. Program commencement to date, the Company has sold 10,755,679 of its
common stock at an average price of $49.67 per share, which generated net proceeds of approximately $531.5 million. In November 2022, the Company
exhausted the capacity under its 2019 ATM Program and then in December 2022, entered into a new continuous equity offering under which the Company
may sell up to $1 billion of its common stock from time to time through a sales agent in "at the market" offerings (the "2022 ATM Program"). As of
December 31, 2022, the Company had $1.0 billion remaining for issuance under the 2022 ATM Program.
During the fourth quarter of 2021 and 2020, the Company issued 8.9 million shares at $44.24 per share and 9.2 million shares at $36.25 per share,
respectively of common stock to partially finance the funding required for the Cordish and Bally's transactions, respectively. See Note 6 for further details.
In August 2022, the Company entered into a forward sale agreement (the "August 2022 Forward Sale Agreement"), for up to $105 million. No
amounts have been or will be recorded on the Company's balance sheet with respect to the August 2022 Forward Sale Agreement until settlement.
The August 2022 Forward Sale Agreement requires the Company to, at its election prior to August 19, 2023, physically settle the transactions by
issuing shares of its common stock to the forward counterparty in exchange for net proceeds at the then applicable forward sale price specified by the
August 2022 Forward Sale Agreement. The forward sale price is subject to adjustment on a daily basis based on a floating interest rate factor and will
decrease by other specified fixed amounts.
Until settlement of the August 2022 Forward Sale Agreement, earnings per share dilution resulting from the August 2022 Forward Sale
Agreement will be determined under the treasury stock method. Share dilution occurs when the average market price of the Company's common stock is
higher than the average forward sales price (which is reduced by the maximum specified fixed amounts in the contract). The August 2022 Forward Sale
Agreement had no dilutive impact for the year ended December 31, 2022. As described in Note 18, the Company settled the August 2022 Forward Sale
Agreement in February 2023.
Noncontrolling Interests
As partial consideration for the Cordish transaction (See Note 1), the Company's operating partnership issued OP Units to affiliates of Cordish.
The OP Units are exchangeable for common shares of the Company on a one-for-one basis, subject to certain terms and conditions. As of December 31,
2022, the Company holds a 97.3% controlling financial interest in the operating partnership. The Company paid $20.7 million in distributions to the non-
controlling interest holders concurrently with the dividends paid to the Company's common shareholders, during the year ended December 31, 2022.
/101
The following table lists the regular dividends declared and paid by the Company during the years ended December 31, 2022, 2021 and 2020:
Declaration Date
Shareholder Record Date
Securities
Class
Dividend Per
Share
Period Covered
Distribution Date
Dividend Amount
(1) (2)
(in thousands)
2022
2021
2020
February 24, 2022
March 11, 2022
May 9, 2022
June 10, 2022
August 31, 2022
September 16, 2022
November 23, 2022
December 9, 2022
February 22, 2021
March 9, 2021
May 20, 2021
June 11, 2021
August 27, 2021
September 10, 2021
November 29, 2021
December 9, 2021
December 17, 2021
December 27, 2021
February 20, 2020
March 6, 2020
April 29, 2020
May 13, 2020
August 6, 2020
August 17, 2020
November 5, 2020
November 16, 2020
Common
Stock
Common
Stock
Common
Stock
Common
Stock
Common
Stock
Common
Stock
Common
Stock
Common
Stock
Common
Stock
Common
Stock
Common
Stock
Common
Stock
Common
Stock
$
$
$
$
$
$
$
$
$
$
$
$
$
0.69 First Quarter 2022
March 25, 2022 $
170,805
0.705 Second Quarter 2022
June 24, 2022 $
174,519
0.705 Third Quarter 2022
September 30, 2022 $
181,549
0.705 Fourth Quarter 2022
December 23, 2022 $
183,813
0.65 First Quarter 2021
March 23, 2021 $
151,308
0.67 Second Quarter 2021
June 25, 2021 $
156,876
0.67 Third Quarter 2021
September 24, 2021 $
159,426
0.67 Fourth Quarter 2021
December 23, 2021 $
165,628
0.24 Fourth Quarter 2021
January 7, 2022 $
59,330
0.70 First Quarter 2020
March 20, 2020 $
150,574
0.60 Second Quarter 2020
June 26, 2020 $
129,071
0.60 Third Quarter 2020
September 25, 2020 $
130,697
0.60 Fourth Quarter 2020
December 24, 2020 $
137,943
(1) Dividend distributed on June 26, 2020 was paid $25.8 million in cash and $103.2 million in stock (2,697,946 shares at $38.2643). Dividend
distributed on September 25, 2020 was paid $26.2 million in cash and $104.5 million in stock (2,767,704 shares at $37.7635). Dividend distributed on
December 24, 2020 was paid $27.6 million in cash and $110.3 million in stock (2,543,675 shares at $43.3758). For accounting purposes, since the
Company is in an accumulated deficit position the value of the stock dividend was recorded at its par value.
(2) On December 17, 2021, the Company declared a special earnings and profits dividend related to the sale of the operations at Hollywood
Casino Perryville and Hollywood Casino Baton Rouge of $0.24 per share on the Company's common stock. The dividend was accrued in 2021 and paid on
January 7, 2022. In addition, dividend payments of $61 thousand were made to GLPI restricted stock award holders.
In addition, for the years ended December 31, 2022, 2021 and 2020, dividend payments were made to GLPI restricted stock award holders in the
amount of $0.8 million, $0.7 million and $0.8 million, respectively. Dividends distributed to the Company's employees on June 26, 2020 were paid $33
thousand in cash and $153 thousand in stock (4,006 shares at $38.2643). Dividends distributed to the Company's employees on September 25, 2020 were
paid $32 thousand in cash and $217 thousand in stock (5,746 shares at $37.7635). Dividends distributed to the Company's employees on December 24,
2020 were paid $34 thousand in cash and $118 thousand in stock (2,722 shares at $43.3758).
/102
A summary of the Company's taxable common stock distributions for the years ended December 31, 2022, 2021 and 2020 is as follows
(unaudited):
Qualified dividends
Non-qualified dividends
Capital gains
Non-taxable return of capital
Total distributions per common share
(1)
$
$
Percentage classified as qualified dividends
Percentage classified as non-qualified dividends
Percentage classified as capital gains
Percentage classified as non-taxable return of capital
2022
2021
2020
Year Ended December 31,
—
2.5686
0.2773
—
2.85
— %
90.26 %
9.74 %
— %
100.00 %
(in dollars per share)
0.22552
2.58944
0.01199
0.03215
2.86
$
$
$
$
7.89 %
90.57 %
0.42 %
1.12 %
100.00 %
—
2.4517
0.0025
0.0458
2.50
— %
98.07 %
0.10 %
1.83 %
100.00 %
(1)
A portion of the $0.24 dividend declared on December 27, 2021 and paid on January 7, 2022 is treated as a 2022 distribution and a portion is
treated as a 2021 distribution for federal income tax purposes.
17. Supplemental Disclosures of Cash Flow Information and Noncash Activities
Supplemental disclosures of cash flow information are as follows:
Year ended December 31,
2022
2021
(in thousands)
2020
Cash paid for income taxes, net of refunds received
Cash paid for interest
$
21,189 $
286,043
17,499 $
273,482
3,383
261,127
Noncash Investing and Financing Activities
On March 1, 2022, as part of the consideration for the real estate assets acquired pursuant to the Pennsylvania Live!
Master Lease, the Company issued approximately 3.0 million OP Units that were valued at $137.0 million and assumed debt of
$422.9 million that was repaid after closing with the offsetting increase to Investment in leases, financing receivables.
On December 29, 2021, as part of the consideration for the real estate assets of Live! Casino & Hotel Maryland, the Company issued 4.35 million
OP Units that were valued at $205.1 million and assumed debt of $363.3 million that was repaid after closing. The Company also recorded a $53.3 million
increase to lease liabilities for a right of use liability associated with a land lease with an increase to Investment in leases, financing receivables in
connection with the transaction. In connection with the June 3, 2021 transaction with Bally's the Company recorded a $36.4 million increase to right of use
assets and land rights, net and lease liabilities for a right of use liability associated with a land lease.
As described in Note 1, during the year ended December 31, 2021, the Company sold the operations of Hollywood Casino Perryville and
Hollywood Casino Baton Rouge and leased the underlying real estate to third party operators. This resulted in the reclassification of $67.1 million of net
assets from property, plant and equipment used in operations to real estate investments, net on the Consolidated Balance Sheets.
In 2020, the Company acquired from PENN the real property associated with the Tropicana Las Vegas in exchange for rent credits of
$307.5 million and the land at PENN's development facility in Morgantown, Pennsylvania for rent credits of $30 million. For the year ended December 31,
2020, the Company also acquired the real property of Belterra Park in satisfaction of the Belterra Park Loan of $57.7 million held on the property, subject
to the Belterra Park Lease and acquired the
/103
real property of Horseshoe St. Louis in satisfaction of the $246.0 million CZR loan subject to the Horseshoe St. Louis Lease. In addition, as described in
Note 1, the Company entered into an Exchange Agreement pursuant to which Caesars transferred to the Company the real estate assets of Waterloo and
Bettendorf for the real estate assets of Tropicana Evansville and a cash payment of $5.7 million.
As previously discussed, the Company declared a dividend on December 27, 2021, totaling $59.3 million, that was paid on January 7, 2022 and
that was accrued at December 31, 2021. Finally, see Note 16 for a description of the stock dividend that was distributed in 2020. The Company did not
engage in any other noncash investing and financing activities during the years ended December 31, 2022, 2021 and 2020.
18. Subsequent Events
On October 10, 2022, the Company announced that it agreed to create a new master lease with PENN for seven of PENN's current properties. The
companies have also agreed to a funding mechanism to support PENN's pursuit of relocation and development opportunities at several of the properties
included in the new master lease. The transaction, including the creation of the new master lease, became effective in 2023.
Pursuant to this agreement, the current PENN master lease was amended to remove PENN's properties in Aurora and Joliet, Illinois; Columbus
and Toledo, Ohio; and Henderson, Nevada and those properties were added to a new master lease. In addition, the existing leases for the Hollywood Casino
at The Meadows in Pennsylvania and Hollywood Casino Perryville in Maryland were terminated and these properties were transferred into the new master
lease (the "New Penn Master Lease"). GLPI agreed to fund up to $225 million for the relocation of PENN's riverboat casino in Aurora at a 7.75% cap rate
and, if requested by PENN, will fund up to $350 million for the relocation of the Hollywood Casino Joliet as well as the construction of hotels at
Hollywood Casino Columbus and a second hotel tower at the M Resort Spa Casino at then current market rates.
The terms of the New Penn Master Lease and the amended PENN master lease are substantially similar to the current PENN master lease with the
following key differences;
The New Penn Master Lease is cross-defaulted and co-terminus with the amended PENN master lease.
The initial term of the New Penn Master Lease expires on October 31, 2033, with three 5-year extensions at PENN’s option.
•
•
• All rent in the New Penn Master Lease is fixed with annual escalation of 1.50%, with the first escalation expected to occur for the lease year
•
beginning on November 1, 2023.
The rent for the New Penn Master Lease is $232.2 million in base rent. The rent for the amended PENN master lease is $284.1 million,
consisting of $208.2 million of building base rent, $43.0 million of land base rent, and $32.9 million of percentage rent.
On January 3, 2023, the Company closed its previously announced acquisition from Bally's of the land and real estate assets of Bally's Biloxi
and Bally's Tiverton for $635.0 million total consideration, inclusive of $15 million in the form of OP units. These properties were added to the
Company's existing Master Lease with Bally's. The initial annual rent for the lease was increased by $48.5 million on an annual basis, subject to
contractual escalations based on the CPI, with a 1% floor and 2% ceiling, subject to the CPI meeting a 0.5% threshold.
In connection with GLPI’s commitment to consummate the Bally’s acquisitions, it also agreed to pre-fund, at Bally’s election, a deposit of up to
$200.0 million, which was funded in September 2022 and recorded in Other assets on the Consolidated Balance Sheet at December 31, 2022. This amount
was credited to GLPI along with a $9.0 million transaction fee payable at closing which occurred on January 3, 2023. The Company continues to have the
option, subject to receipt by Bally's of required consents, to acquire the real property assets of Bally's Lincoln prior to December 31, 2024 for a purchase
price of $771 million and additional rent of $58.8 million.
Additionally, the Company accessed the entire $600.0 million Term Loan Credit Agreement (See Note 10 for further details) in connection with
the closing.
On January 13, 2023, the Company announced that it has called for redemption all of the $500 million, 5.375% Senior Notes due in 2023 (the
"Notes"). The Company redeemed all of the Notes on February 12, 2023 (the "Redemption Date") for $507.5 million which represented 100% of the
principal amount of the Notes plus accrued interest through the Redemption Date. GLPI funded the redemption of the Notes primarily from cash on hand as
well as through the settlement of the August
/104
2022 Forward Sale Agreement that occurred in February 2023 which resulted in the settlement of 1,284,556 shares being issued which raised net proceeds
of $64.6 million.
/105
SCHEDULE III
REAL ESTATE ASSETS AND ACCUMULATED DEPRECIATION
December 31, 2022
(in thousands)
Initial Cost to Company
Gross Amount at which Carried at Close of
Period
Location
Encumbrances
Land and
Improvements
Buildings and
Improvements
Net
Capitalized
Costs
(Retirements)
Subsequent to
Acquisition
Land and
Improvements
Buildings and
Improvements
Total
(7)
Accumulated
Depreciation
Original
Date of
Construction /
Renovation
Date
Acquired
Life on
which
Depreciation
in Latest
Income
Statement is
Computed
Description
Rental Properties:
Hollywood Casino
Lawrenceburg
Hollywood Casino
Aurora
Lawrenceburg,
IN
$
Aurora, IL
Hollywood Casino Joliet
Joliet, IL
Argosy Casino Alton
Alton, IL
Hollywood Casino
Toledo
Hollywood Casino
Columbus
Toledo, OH
Columbus, OH
Hollywood Casino at
Charles Town Races
Charles Town,
WV
Hollywood Casino at
Penn National Race
Course
M Resort
Hollywood Casino
Bangor
Zia Park Casino
Grantville, PA
Henderson, NV
Bangor, ME
Hobbs, NM
Hollywood Casino Gulf
Coast
Bay St. Louis,
MS
Argosy Casino Riverside Riverside, MO
Hollywood Casino
Tunica
Boomtown Biloxi
Hollywood Casino
St. Louis
Hollywood Casino at
Dayton Raceway
Hollywood Casino at
Mahoning Valley
Race Track
Resorts Casino Tunica
st
1 Jackpot Casino
Ameristar Black Hawk
Ameristar East Chicago
Tunica, MS
Biloxi, MS
Maryland
Heights, MO
Dayton, OH
Youngstown,
OH
Tunica, MS
Tunica, MS
Black Hawk,
CO
East Chicago,
IN
—
$
15,251
$
342,393
$
(30)
$
15,221
$
342,393
$ 357,614
$
189,480
1997/2009
11/1/2013
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
4,937
98,378
19,214
—
101,104
6,462
12,003
144,093
38,240
188,543
35,102
233,069
25,500
66,104
12,883
9,313
59,388
23,468
4,634
3,423
161,810
126,689
84,257
38,947
87,352
143,301
42,031
63,083
(383)
(20)
—
(201)
105
—
—
(436)
—
—
(229)
(77)
—
(137)
4,936
97,996
102,932
80,679
19,194
—
101,104
120,298
6,462
6,462
69,880
5,025
11,802
144,093
155,895
55,917
38,266
188,622
226,888
75,011
1993/2002/
2012
1992/2003/
2010
1991/1999
2012
2012
11/1/2013
11/1/2013
11/1/2013
11/1/2013
11/1/2013
35,102
233,069
268,171
162,140
1997/2010
11/1/2013
25,500
65,668
12,883
9,313
59,176
23,391
4,634
3,286
161,810
126,689
187,310
192,357
101,742
2008/2010
55,053
2009/2012
84,257
38,947
97,140
48,260
87,335
143,301
146,511
166,692
42,031
63,083
46,665
66,369
44,238
26,330
61,822
81,271
32,368
55,724
2008/2012
2005
1992/2006/
2011
1994/2007
1994/2012
1994/2006
11/1/2013
11/1/2013
11/1/2013
11/1/2013
11/1/2013
11/1/2013
11/1/2013
11/1/2013
44,198
177,063
(3,239)
40,959
177,063
218,022
122,471
1997/2013
11/1/2013
3,211
5,683
—
161
—
—
12,860
10,100
243,092
334,024
4,198
123,430
86,288
3,211
86,288
89,499
23,299
2014
11/1/2013
94,314
5,833
94,164
99,997
25,208
2014
11/1/2013
(12,860)
—
25
—
—
161
—
—
10,100
10,261
—
2,104
243,117
334,024
577,141
47,425
4,198
123,430
127,628
20,158
1994/1996/
2005/2014
1995
2000
1997
5/1/2017
5/1/2017
4/28/2016
4/28/2016
31
30
31
31
31
31
31
31
30
31
31
40
37
31
15
13
31
31
N/A
31
31
31
/106
Belterra Casino Resort
Florence, IN
Ameristar Council Bluffs
L'Auberge Baton Rouge
Council Bluffs,
IA
Baton Rouge,
LA
Boomtown Bossier City
Bossier City, LA
L'Auberge Lake Charles
Lake Charles,
LA
Boomtown New Orleans
Boomtown, LA
Ameristar Vicksburg
Vicksburg, MS
River City Casino & Hotel
St Louis, MO
Ameristar Kansas City
Kansas City,
MO
Ameristar St. Charles
St. Charles, MO
Jackpot Properties
Jackpot, NV
Plainridge Park Casino
Plainridge, MA
Belterra Park Gaming and
Entertainment Center
(1)
The Meadows Racetrack and
Casino
Casino Queen
Tropicana Atlantic City
(2)
Tropicana Evansville
Cincinnati, OH
Washington, PA
East St. Louis,
IL
Atlantic City, NJ
Evansville, IN
Tropicana Evansville-Bally's Evansville, IN
Tropicana Laughlin
Laughlin, NV
Trop Casino Greenville
Greenville, MS
Belle of Baton Rouge
Isle Casino Waterloo
(2)
Isle Casino Bettendorf
(1)
Horseshoe St. Louis
(2)
Hollywood Casino
Morgantown
(3)
Hollywood Casino
Perryville
Dover Downs Hotel &
Casino
Hollywood Casino Baton
Rouge
Tropicana Las Vegas
(6)
Bally's Black Hawk
Bally's Quad Cities Casino
& Hotel
Baton Rouge,
LA
Waterloo, IA
Bettendorf, IA
St Louis, MO
Morgantown,
PA
Perryville, MD
Dover, DE
Baton Rouge,
LA
Las Vegas NV
Black Hawk,
CO
Rock Island, IL
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
—
63,420
172,876
84,009
109,027
205,274
79,022
14,831
46,019
128,068
8,117
239,111
375,597
48,784
127,068
178,426
107,067
310,877
58,258
96,106
221,038
271,598
437,908
61,550
123,850
11,689
45,995
—
—
—
—
(92)
—
—
—
—
—
—
—
—
63,420
172,876
236,296
28,307
84,009
109,027
193,036
17,513
205,274
79,022
14,739
46,019
128,068
8,117
239,111
375,596
48,784
127,068
178,426
107,067
383,700
186,089
310,877
58,258
96,106
221,038
271,598
437,908
61,550
123,850
325,616
104,277
224,174
229,155
510,709
813,504
110,334
250,918
26,981
16,255
51,403
9,981
19,610
34,564
47,527
63,458
12,554
16,813
11,689
45,995
57,684
5,886
181,532
141,370
(2,864)
179,598
140,440
320,038
35,078
70,716
166,974
—
120,473
20,671
—
11,873
64,263
29,636
26,930
30,253
23,266
99,106
7,320
226,160
17,537
36,848
78,714
392,923
—
153,130
80,530
21,680
52,400
77,958
85,150
219,070
149,430
559,897
—
273,603
101,201
21,680
64,273
142,221
114,786
246,000
23,707
53,411
—
8,082
12,249
2,943
8,747
5,134
5,608
16,902
—
30,253
—
31,079
54,345
17,945
48,300
147,406
9,477
70,376
77,696
25,603
—
226,160
13,730
31,267
—
392
82,010
118,858
2,620
70,716
166,974
47,439
120,473
20,671
—
11,873
64,263
29,636
26,930
30,253
23,266
99,106
7,320
226,160
17,537
36,848
70,014
392,923
146,930
153,130
80,530
21,680
52,400
77,958
85,150
219,070
—
31,079
48,300
40,812
—
13,730
82,010
8,700
—
(194,369)
—
—
—
—
—
—
—
—
—
29,564
—
—
—
/107
2000
1996
2012
2002
2005
1994
1994
2010
1997
1994
1954
2015
2013
2006
1999
1981
1995
1995
1988
2012
1994
2005
2015
2005
2020
2010
1995
1994
1955
1991
2007
4/28/2016
4/28/2016
4/28/2016
4/28/2016
4/28/2016
4/28/2016
4/28/2016
4/28/2016
4/28/2016
4/28/2016
4/28/2016
10/15/2018
5/6/2020
9/9/2016
1/23/2014
10/1/2018
10/1/2018
6/3/2021
10/1/2018
10/1/2018
10/1/2018
12/18/2020
12/18/2020
10/1/2020
10/1/2020
07/1/2021
06/3/2021
12/17/2021
04/16/2020
04/01/2022
04/01/2022
31
31
31
31
31
31
31
31
31
31
31
31
31
31
31
31
N/A
31
27
31
31
31
31
31
N/A
31
31
31
N/A
27
31
Headquarters Property:
(4)
GLPI Corporate Office
Other Properties
Wyomissing, PA
Other owned land
(5)
various
$
—
—
—
—
3,242,009
6,370,651
4,059
3,188,391
6,428,327
9,616,718
1,916,095
750
8,465
85
6,798
—
(6,798)
750
—
8,550
9,300
1,988
2014/2015
9/19/2014
31
—
—
—
$
3,249,557
$
6,379,116
$
(2,654)
$
3,189,141
$
6,436,877
$ 9,626,018
$
1,918,083
(1)
During 2020, the Company acquired the real estate of both of these properties in satisfaction of previously outstanding loans, subject to the
Belterra Park Lease and the Horseshoe St. Lease, respectively.
(2)
On December 18, 2020, Caesar's elected to replace Tropicana Evansville with Isle Casino Bettendorf and Isle Casino Waterloo as allowed under the
Second Amended and Restated Caesars Master Lease.
(3)
On October 1, 2020, the Company and PENN closed on their previously announced transaction whereby GLPI acquired the land under PENN's gaming
facility under construction in Morgantown, Pennsylvania in exchange for $30.0 million in rent credits which were fully utilized by PENN in the fourth
quarter of 2020. The Company is leasing the land back to an affiliate of PENN pursuant to the Morgantown Lease for an initial annual rent of $3.0 million,
subject to escalation provisions following the opening of the property.
(4)
The Company's corporate headquarters building was completed in October 2015. The land was purchased on September 19, 2014 and construction on
the building occurred through October 2015.
(5)
This includes undeveloped land the Company owns at locations other than its tenant occupied properties. The undeveloped land was sold on August 9,
2022.
(6)
On April 13, 2021, Bally’s agreed to acquire both GLPI’s non-land real estate assets and PENN's outstanding equity interests in Tropicana Las Vegas
Hotel and
Casino, Inc. This deal closed on September 26, 2022.
(7)
The aggregate cost for federal income tax purposes of the properties listed above was $9.22 billion at December 31, 2022. This amount includes the tax
basis of all real property assets acquired from Pinnacle, including building assets.
/108
A summary of activity for real estate and accumulated depreciation for the years ended December 31, 2022, 2021 and 2020 is as follows:
Real Estate:
Balance at the beginning of the period
Acquisitions
Construction in progress
Capital expenditures and assets placed in service
Dispositions
Balance at the end of the period
Accumulated Depreciation:
Balance at the beginning of the period
Depreciation expense
Additions (1)
Dispositions
Balance at the end of the period
Year Ended December 31,
2022
2021
2020
(in thousands)
$
9,458,918
$
8,698,098
$
8,301,496
150,126
23,864
—
(6,890)
749,671
590,971
5,699
8,700
(3,250)
—
—
(194,369)
9,626,018
$
9,458,918
$
8,698,098
(1,681,367)
$ (1,410,940)
$ (1,200,941)
(236,809)
—
93
(230,941)
(39,909)
423
(220,069)
—
10,070
$
$
$
(1,918,083)
$ (1,681,367)
$ (1,410,940)
(1) Represents accumulated depreciation on real estate assets of Hollywood Casino Perryville and Hollywood Casino Baton Rouge which were leased to
third parties during 2021. See Note 6 in the Notes to the Consolidated Financial Statements for further information.
/109
ITEM 9. CHANGES IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL DISCLOSURE
None.
ITEM 9A. CONTROLS AND PROCEDURES
Evaluation of Disclosure Controls and Procedures
The Company's management, under the supervision and with the participation of the principal executive officer and principal financial officer, has
evaluated the effectiveness of the Company's disclosure controls and procedures, as such term is defined under Rule 13a-15(e) promulgated under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), as of December 31, 2022, which is the end of the period covered by this Annual
Report on Form 10-K. In designing and evaluating the disclosure controls and procedures, management recognized that any controls and procedures, no
matter how well-designed and operated, can provide only reasonable assurance of achieving the desired control objectives, and management was required
to apply its judgment in evaluating the cost-benefit relationship of possible controls and procedures. Based on this evaluation, our principal executive
officer and principal financial officer concluded that as of December 31, 2022 the Company's disclosure controls and procedures were effective to ensure
that information required to be disclosed by the Company in reports it files or submits under the Exchange Act is (i) recorded, processed, summarized,
evaluated and reported, as applicable, within the time periods specified in the United States Securities and Exchange Commission's rules and forms and
(ii) accumulated and communicated to the Company's management, including the Company's principal executive officer and principal financial officer, as
appropriate to allow timely decisions regarding required disclosures.
Management's Report on Internal Control over Financial Reporting
The Company's management is responsible for establishing and maintaining an adequate system of internal control over financial reporting, as
defined in Exchange Act Rules 13a-15(f) and 15d-15(f). The Company's management conducted an assessment of the Company's internal control over
financial reporting and concluded it was effective as of December 31, 2022. In making this assessment, management used the criteria established by the
Committee of Sponsoring Organizations of the Treadway Commission in Internal Control - Integrated Framework (2013).
Deloitte & Touche LLP (PCAOB ID No. 34), the Company's independent registered accounting firm, issued an audit report on the effectiveness of
the Company's internal control over financial reporting as of December 31, 2022, which is included on the following page of this Annual Report on Form
10-K.
Changes in Internal Control Over Financial Reporting
There have been no changes in the Company's internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-
15(f)) that occurred during the fiscal quarter ended December 31, 2022, that have materially affected, or are reasonably likely to materially affect, the
Company's internal control over financial reporting.
/110
REPORT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To the shareholders and the Board of Directors of
Gaming and Leisure Properties, Inc. and subsidiaries
Opinion on Internal Control over Financial Reporting
We have audited the internal control over financial reporting of Gaming and Leisure Properties, Inc. and subsidiaries (the "Company") as of December 31,
2022, based on criteria established in Internal Control -- Integrated Framework (2013) issued by the Committee of Sponsoring Organizations of the
Treadway Commission (COSO). In our opinion, the Company maintained, in all material respects, effective internal control over financial reporting as of
December 31, 2022, based on criteria established in Internal Control -- Integrated Framework (2013) issued by COSO.
We have also audited, in accordance with the standards of the Public Company Accounting Oversight Board (United States) (PCAOB), the consolidated
financial statements and financial statement schedule as of and for the year ended December 31, 2022, of the Company and our report dated February 23,
2023, expressed an unqualified opinion on those financial statements.
Basis for Opinion
The Company's management is responsible for maintaining effective internal control over financial reporting and for its assessment of the effectiveness of
internal control over financial reporting, included in the accompanying Management’s Report on Internal Control over Financial Reporting. Our
responsibility is to express an opinion on the Company's internal control over financial reporting based on our audit. We are a public accounting firm
registered with the PCAOB and are required to be independent with respect to the Company in accordance with the U.S. federal securities laws and the
applicable rules and regulations of the Securities and Exchange Commission and the PCAOB.
We conducted our audit in accordance with the standards of the PCAOB. Those standards require that we plan and perform the audit to obtain reasonable
assurance about whether effective internal control over financial reporting was maintained in all material respects. Our audit included obtaining an
understanding of internal control over financial reporting, assessing the risk that a material weakness exists, testing and evaluating the design and operating
effectiveness of internal control based on the assessed risk, and performing such other procedures as we considered necessary in the circumstances. We
believe that our audit provides a reasonable basis for our opinion.
Definition and Limitations of Internal Control over Financial Reporting
A company's internal control over financial reporting is a process designed to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles. A company's internal control
over financial reporting includes those policies and procedures that (1) pertain to the maintenance of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the company; (2) provide reasonable assurance that transactions are recorded as necessary to permit
preparation of financial statements in accordance with generally accepted accounting principles, and that receipts and expenditures of the company are
being made only in accordance with authorizations of management and directors of the company; and (3) provide reasonable assurance regarding
prevention or timely detection of unauthorized acquisition, use, or disposition of the company's assets that could have a material effect on the financial
statements.
Because of its inherent limitations, internal control over financial reporting may not prevent or detect misstatements. Also, projections of any evaluation of
effectiveness to future periods are subject to the risk that controls may become inadequate because of changes in conditions, or that the degree of
compliance with the policies or procedures may deteriorate.
/s/ Deloitte & Touche
New York, New York
February 23, 2023
/111
ITEM 9B. OTHER INFORMATION
On February 21, 2023, GLP Capital entered into an amended and restated PENN Master Lease (the “A&R PENN Master Lease”) and entered into
a new master lease with affiliates of PENN (the “New PENN Master Lease”), each effective as of January 1, 2023. The A&R PENN Master Lease removed
PENN's properties in Aurora and Joliet, Illinois; Columbus and Toledo, Ohio; and Henderson, Nevada and these properties were added to the New PENN
Master Lease. In addition, the existing Meadows Lease and Perryville Lease were terminated and these properties were also added to the New PENN
Master Lease. The PENN tenant parties to the New Penn Master Lease include Penn Tenant LLC, Penn Cecil Maryland, LLC, and PNK Development 33,
LLC, each of which is a wholly-owned subsidiary of PENN, directly or indirectly.
The initial term of the New Penn Master Lease will expire on October 31, 2033, with three 5-year extensions at PENN’s option. Base rent for the New
Penn Master Lease will be approximately $232.2 million (fixed), with annual escalation of 1.50%, with the first escalation occurring for the lease year
beginning on November 1, 2023. Rent for the A&R PENN Master Lease will be approximately $284.1 million, consisting of approximately $208.2 million
of building base rent, approximately $43.0 million of land base rent, and approximately $32.9 million of percentage rent. The New Penn Master Lease is
cross-defaulted, cross collateralized and co-terminus with the A&R PENN Master Lease.
The terms of the A&R PENN Master Lease and the New Penn Master Lease are otherwise materially similar to the terms of the current PENN Master
Lease.
Pursuant to the terms of a development agreement with PENN, the Company has agreed to a funding mechanism to support PENN’s pursuit of relocation
and development opportunities at several of the properties included in the New PENN Master Lease. Specifically, the Company has agreed to fund up to
$225 million for the relocation of PENN's riverboat casino in Aurora at a 7.75% cap rate and, if requested by PENN, to fund up to $350 million for the
relocation of the Hollywood Casino Joliet, as well as the construction of hotels at Hollywood Casino Columbus and a second hotel tower at the M Resort
Spa Casino at then current market rates.
ITEM 9C. DISCLOSURE REGARDING FOREIGN JURISDICTIONS THAT PREVENT INSPECTIONS
None.
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PART III
ITEM 10. DIRECTORS, EXECUTIVE OFFICERS AND CORPORATE GOVERNANCE
The information required by this item concerning directors is hereby incorporated by reference to the Company's definitive proxy statement for its
2023 Annual Meeting of Shareholders (the "2023 Proxy Statement"), to be filed with the U.S. Securities and Exchange Commission within 120 days after
December 31, 2022, pursuant to Regulation 14A under the Securities Exchange Act of 1934, as amended. Information required by this item concerning
executive officers is included in Part I of this Annual Report on Form 10-K.
ITEM 11. EXECUTIVE COMPENSATION
The information called for in this item is hereby incorporated by reference to the 2023 Proxy Statement.
ITEM 12. SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED STOCKHOLDERS
MATTERS
The information called for in this item is hereby incorporated by reference to the 2023 Proxy Statement.
ITEM 13. CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS AND DIRECTOR INDEPENDENCE
The information called for in this item is hereby incorporated by reference to the 2023 Proxy Statement.
ITEM 14. PRINCIPAL ACCOUNTING FEES AND SERVICES
The information called for in this item is hereby incorporated by reference to the 2023 Proxy Statement.
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ITEM 15. EXHIBITS, FINANCIAL STATEMENT SCHEDULE
PART IV
(a) 1. Financial Statements. The following is a list of the Consolidated Financial Statements of the Company and its subsidiaries and supplementary data
filed as part of Item 8 hereof:
Report of Independent Registered Public Accounting Firm
Consolidated Balance Sheets as of December 31, 2022 and 2021
Consolidated Statements of Income for the years ended December 31, 2022, 2021 and 2020
Consolidated Statements of Changes in Equity for the years ended December 31, 2022, 2021 and 2020
Consolidated Statements of Cash Flows for the years ended December 31, 2022, 2021 and 2020
2. Financial Statement Schedule:
Schedule III. Real Estate and Accumulated Depreciation as of December 31, 2022
3. Exhibits, Including Those Incorporated by Reference.
The exhibits to this Report are listed on the accompanying index to exhibits and are incorporated herein by reference or are filed as part of
this annual report on Form 10-K.
ITEM 16. FORM 10-K SUMMARY
None.
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Exhibit
EXHIBIT INDEX
Description of Exhibit
2.1 Separation and Distribution Agreement, dated November 1, 2013, by and between Penn National Gaming, Inc. and Gaming and Leisure
Properties, Inc. (Incorporated by reference to Exhibit 2.1 to the Company's current report on Form 8-K filed on November 7, 2013).
2.2 Separation and Distribution Agreement, dated April 28, 2016, by and between PNK Entertainment, Inc., Pinnacle Entertainment, Inc. and
solely with respect to Article VIII, Gaming and Leisure Properties, Inc. (Incorporated by reference to Exhibit 2.4 to the Company's current
report on Form 8-K filed on April 28, 2016).
3.1 Amended and Restated Articles of Incorporation of Gaming and Leisure Properties, Inc. (Incorporated by reference to Exhibit 3.1 to the
Company's current report on Form 8-K filed on June 15, 2018).
3.2 Amended and Restated Bylaws of Gaming and Leisure Properties, Inc. (Incorporated by reference to Exhibit 3.2 to the Company's current
report on Form 8-K filed on June 15, 2018).
4.1
Indenture, dated as of October 30, 2013, among GLP Capital, L.P. and GLP Financing II, Inc., as Issuers, Gaming and Leisure
Properties, Inc., as Parent Guarantor, and Wells Fargo Bank, National Association, as Trustee. (Incorporated by reference to Exhibit 4.1 to
the Company's current report on Form 8-K filed on November 1, 2013).
4.2 First Supplemental Indenture, dated as of March 28, 2016, by and among GLP Capital, L.P. and GLP Financing II, Inc., as Issuers and Wells
Fargo Bank, National Association, as Trustee. (Incorporated by reference to Exhibit 4.1 to the Company's current report on Form 8-K filed
on March 28, 2016).
4.3 Second Supplemental Indenture, dated as of April 28, 2016, by and among GLP Capital, L.P. and GLP Financing II, Inc. as Issuers and
Gaming and Leisure Properties, Inc, as Parent Guarantor and Wells Fargo Bank, National Association, as Trustee. (Incorporated by reference
to Exhibit 4.3 to the Company's current report on Form 8-K filed on April 28, 2016).
4.4 Third Supplemental Indenture, dated as of April 28, 2016, by and among GLP Capital, L.P. and GLP Financing II, Inc. as Issuers and
Gaming and Leisure Properties, Inc. as Parent Guarantor and Wells Fargo Bank, National Association, as Trustee. (Incorporated by reference
to Exhibit 4.4 to the Company's current report on Form 8-K filed on April 28, 2016).
4.5 Fourth Supplemental Indenture, dated May 21, 2018, by and among GLP Capital, L.P. and GLP Financing II, Inc. as Issuers, Gaming and
Leisure Properties, Inc., as Parent Guarantor, and Wells Fargo Bank, National Association, as Trustee, relating to the Issuers' 4.375% Senior
Notes due 2018. (Incorporated by reference to Exhibit 4.3 to the Company's current report on Form 8-K, filed on May 22, 2018).
4.6 Fifth Supplemental Indenture, dated May 21, 2018, among GLP Capital, L.P. and GLP Financing II, Inc. as Issuers, Gaming and Leisure
Properties, Inc., as Parent Guarantor, and Wells Fargo Bank, National Association, as Trustee, relating to the Issuers' 5.250% Senior Notes
due 2025. (Incorporated by reference to Exhibit 4.4 to the Company's current report on Form 8-K, filed on May 22, 2018).
4.7 Sixth Supplemental Indenture, dated May 21, 2018, by and among GLP Capital, L.P. and GLP Financing II, Inc. as Issuers, Gaming and
Leisure Properties, Inc., as Parent Guarantor, and Wells Fargo Bank, National Association, as Trustee, relating to the Issuers' 5.750% Senior
Notes due 2028. (Incorporated by reference to Exhibit 4.5 to the Company's current report on Form 8-K, filed on May 22, 2018).
4.8 Seventh Supplemental Indenture, dated as of September 26, 2018, by and among GLP Capital, L.P. and GLP Financing II, Inc. as Issuers,
Gaming and Leisure Properties, Inc., as Parent Guarantor, and Wells Fargo Bank, National Association, as Trustee, relating to the Issuers'
5.300% Senior Notes due 2029. (Incorporated by reference to Exhibit 4.4 to the Company's current report on Form 8-K, filed on September
26, 2018).
4.9 Eighth Supplemental Indenture, dated August 29, 2019, among GLP Capital, L.P. and GLP Financing II, Inc., as issuers, Gaming and Leisure
Properties, Inc., as parent guarantor, and Wells Fargo Bank, National Association, as trustee, relating to the issuers’ 3.350% Senior Notes due
2024. (Incorporated by reference to Exhibit 4.3 of the Company's current report on Form 8-K, filed on September 5, 2019).
/115
4.10 Ninth Supplemental Indenture, dated August 29, 2019, among GLP Capital, L.P. and GLP Financing II, Inc., as issuers, Gaming and Leisure
Properties, Inc., as parent guarantor, and Wells Fargo Bank, National Association, as trustee, relating to the issuers’ 4.000% Senior Notes due
2030. (Incorporated by reference to Exhibit 4.4 of the Company's current report on Form 8-K, filed on September 5, 2019).
4.11 Tenth Supplemental Indenture, dated as of June 25, 2020, among GLP Capital, L.P. and GLP Financing II, Inc., as Issuers, Gaming and
Leisure Properties, Inc., as Parent Guarantor, and Wells Fargo Bank, National Association, as Trustee (Incorporated by reference to Exhibit
4.3 of the Company's current report on Form 8-K filed on July 1, 2020).
4.12 Eleventh Supplemental Indenture, dated as of December 13, 2021, among GLP Capital, L.P. and GLP Financing II, Inc., as Issuers, Gaming
and Leisure Properties, Inc. as Parent Guarantor, and Computershare Trust Company, N.A. as successor to Wells Fargo Bank, National
Association, as Trustee. (Incorporated by reference to Exhibit 4.3 of the Company's current report on Form 8-K filed on December 17, 2021).
4.13 Officer's Certificate of GLP Capital, L.P. and GLP Financing II, Inc., dated as of October 30, 2013, establishing the 2018 Notes and the 2023
Notes. (Incorporated by reference to Exhibit 4.2 to the Company's current report on Form 8-K filed on November 1, 2013).
4.14 Form of 2026 Note (Incorporated by reference to Exhibit 4.4 and included in Exhibit 4.4 to the Company's current report on Form 8-K filed
on April 28, 2016).
4.15 Form of 2025 Note (Incorporated by reference to Exhibit 4.6 and included in Exhibit 4.4 to the Company's current report on Form 8-K, filed
on May 22, 2018).
4.16 Form of 2028 Note (Incorporated by reference to Exhibit 4.7 and included in Exhibit 4.5 to the Company's current report on Form 8-K, filed
on May 22, 2018).
4.17 Form of 2029 Note (Incorporated by reference to Exhibit 4.8 and included in Exhibit 4.4 to the Company's current report on Form 8-K, filed
on September 26, 2018).
4.18 Form of 2024 Note. (Incorporated by reference to Exhibit 4.9 and included in Exhibit 4.3 of the Company's current report on Form 8-K, filed
on September 5, 2019).
4.19 Form of 2030 Note (Incorporated by reference to Exhibit 4.10 and included in Exhibit 4.4 of the Company's current report on Form 8-K,
filed on September 5, 2019).
4.20 Form of 2031 Note (Incorporated by reference to Exhibit 4.11 and included in Exhibit 4.3 to the Company's current report on Form 8-K filed
on August 18, 2020).
4.21 Form of 2032 Note (Incorporated by reference to Exhibit 4.12 and included in Exhibit 4.4 to the Company's current report on Form 8-K filed
on December 17, 2021).
4.22* Description of securities registered pursuant to Section 12 of the Securities Exchange Act of 1934.
10.1 Registration Rights Agreement, dated as of October 30, 2013, by and among GLP Capital, L.P., GLP Financing II, Inc., Gaming and Leisure
Properties, Inc. and Merrill Lynch, Pierce, Fenner & Smith Incorporated and the other initial purchasers named therein, with respect to the
2023 Notes. (Incorporated by reference to Exhibit 10.2 to the Company's current report on Form 8-K filed on November 1, 2013).
10.2 Credit Agreement, dated as of October 28, 2013, among GLP Capital, L.P., as successor-by-merger to GLP Financing, LLC, each lender
from time to time party thereto and JPMorgan Chase Bank, N.A., as administrative agent. (Incorporated by reference to Exhibit 10.4 to the
Company's current report on Form 8-K filed on November 1, 2013).
10.3 Amendment No. 1, dated as of July 31, 2015, to the Credit Agreement dated as of October 28, 2013 among GLP Capital, L.P., the several
banks and other financial institutions party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and the various other parties
thereto. (Incorporated by reference to Exhibit 10.2 to the Company's Registration Statement on S-4 filed on August 28, 2015).
/116
10.4 First Amendment, dated as of March 25, 2016, to Amendment No. 1, dated as of July 31, 2015, to the Credit Agreement dated as of October
28, 2013 among GLP Capital, L.P., the several banks and other financial institutions party thereto, JPMorgan Chase Bank, N.A., as
Administrative Agent and the various other parties thereto. (Incorporated by reference to Exhibit 10.1 to the Company's current report on
Form 8-K filed on March 28, 2016).
10.5 Amendment No. 2, dated as of May 21, 2018, to the Credit Agreement dated as of October 28, 2013 among GLP Capital, L.P., the several
banks and other financial institutions party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and the various other parties
thereto. (Incorporated by reference to Exhibit 10.1 to the Company's current report on Form 8-K, filed on May 22, 2018).
10.6 Amendment No. 3, dated as of October 10, 2018, to the Credit Agreement dated as of October 28, 2013 among GLP Capital, L.P., the several
banks and other financial institutions party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and the various other parties
thereto. (Incorporated by reference to Exhibit 10.5 to the Company's quarterly report on Form 10-Q filed on November 1, 2018).
10.7 Amendment No. 5, dated as of March 30, 2020, to the Credit Agreement dated as of October 28, 2013 among GLP Capital, L.P., the several
banks and other financial institutions party thereto, JPMorgan Chase Bank, N.A., as Administrative Agent and the various other parties
thereto (Incorporated by reference to Exhibit 4.1 to the Company's quarterly report on Form 10-Q filed on May 1, 2020).
10.8 Amendment No. 6, dated as of June 25, 2020, to the Credit Agreement dated as of October 28, 2013 among GLP Capital, L.P., the several
banks and other financial institutions party thereto, JPMorgan Chase Bank, N.A., as administrative agent, as further amended (Incorporated
by reference to Exhibit 10.1 to the Company's current report on Form 8-K filed on July 1, 2020).
10.9 Master Lease, dated November 1, 2013, by and among GLP Capital L.P. and Penn Tenant, LLC. (Incorporated by reference to Exhibit 10.1
to the Company's current report on Form 8-K filed on November 7, 2013).
10.10 First Amendment to the Master Lease Agreement, dated as of March 5, 2014, by and among GLP Capital L.P. and Penn Tenant, LLC.
(Incorporated by reference to Exhibit 10.1 to the Company's quarterly report on Form 10-Q filed on May 12, 2014).
10.11 Second Amendment to the Master Lease Agreement, dated as of April 18, 2014, by and among GLP Capital L.P. and Penn Tenant, LLC.
(Incorporated by reference to Exhibit 10.1 to the Company's quarterly report on Form 10-Q filed on August 1, 2014).
10.12 Third Amendment to the Master Lease Agreement, dated as of September 20, 2016, by and among GLP Capital L.P. and Penn Tenant, LLC.
(Incorporated by reference to Exhibit 10.2 to the Company's quarterly report on Form 10-Q filed on November 9, 2016).
10.13 Fourth Amendment to the Master Lease Agreement, dated as of May 1, 2017, by and among GLP Capital L.P. and Penn Tenant, LLC.
(Incorporated by reference to Exhibit 10.2 to the Company's quarterly report on Form 10-Q filed on May 3, 2017).
10.14 Fifth Amendment to the Master Lease Agreement, dated as of June 19, 2018, by and among GLP Capital L.P. and Penn Tenant, LLC.
(Incorporated by reference to Exhibit 10.3 to the Company's quarterly report on Form 10-Q filed on August 1, 2018).
10.15 Sixth Amendment to the Master Lease Agreement, dated as of August 8, 2018, by and among GLP Capital L.P. and Penn Tenant, LLC.
(Incorporated by reference to Exhibit 10.1 to the Company's quarterly report on Form 10-Q filed on November 1, 2018).
10.16 Seventh Amendment to the Master Lease Agreement, dated as of October 31, 2018, by and among GLP Capital L.P. and Penn Tenant, LLC.
(Incorporated by reference to Exhibit 10.16 to the Company's annual report on Form 10-K filed on February 13, 2019).
10.17 Eighth Amendment to the Master Lease Agreement, dated as of November 20, 2018, by and among GLP Capital L.P. and Penn Tenant, LLC.
(Incorporated by reference to Exhibit 10.17 to the Company's annual report on Form 10-K filed on February 13, 2019).
/117
10.18* Ninth Amendment to the Master Lease Agreement, dated as of January 14, 2022, by and among GLP Capital, L.P. and Penn Tenant, LLC.
10.19* Amended and Restated Master Lease, dated February 21, 2023, by and among GLP Capital, L.P. and Penn Tenant, LLC
10.20* Master Lease, dated February 21, 2023, by and among GLP Capital, L.P., Penn Tenant LLC, Penn Cecil Maryland, LLC, and PNK
Development 33, LLC
10.21 Master Lease, dated April 28, 2016, by and among Gold Merger Sub, LLC (as successor to Pinnacle Entertainment, Inc.) and Pinnacle MLS,
LLC. (Incorporated by reference to Exhibit 2.3 to the Company's current report on Form 8-K filed on April 28, 2016).
10.22 First Amendment to the Master Lease, dated August 29, 2016, by and among Gold Merger Sub, LLC (as successor to Pinnacle
Entertainment, Inc.) and Pinnacle MLS, LLC. (Incorporated by reference to Exhibit 10.1 to the Company's quarterly report on Form 10-Q
filed on November 9, 2016).
10.23 Second Amendment to the Master Lease, dated October 25, 2016, by and among Gold Merger Sub, LLC (as successor to Pinnacle
Entertainment, Inc.) and Pinnacle MLS, LLC. (Incorporated by reference to Exhibit 10.13 to the Company's annual report on Form 10-K
filed on February 22, 2017).
10.24 Third Amendment to the Master Lease, dated March 24, 2017, by and among Gold Merger Sub, LLC (as successor to Pinnacle
Entertainment, Inc.) and Pinnacle MLS, LLC. (Incorporated by reference to Exhibit 10.1 to the Company's quarterly report on Form 10-Q
filed on May 3, 2017).
10.25 Fourth Amendment to the Master Lease, dated October 15, 2018, by and between Gold Merger Sub, LLC (as successor to Pinnacle
Entertainment, Inc.) and Pinnacle MLS, LLC. (Incorporated by reference to Exhibit 10.1 to the Company's current report on Form 8-K, filed
on October 16, 2018).
10.26*
Fifth Amendment to the Master Lease, dated January 14, 2022, by and among Gold Merger Sub, LLC (as successor to Pinnacle
Entertainment, Inc.) and Pinnacle MLS, LLC.
10.27 Master Lease Agreement, dated October 15, 2018, by and between Gold Merger Sub, LLC and Boyd TCIV, LLC. (Incorporated by reference
to Exhibit 10.2 to the Company's current report on Form 8-K, filed on October 16, 2018).
10.28 Tax Matters Agreement, dated as of November 1, 2013, by and among Penn National Gaming, Inc. and Gaming and Leisure Properties, Inc.
(Incorporated by reference to Exhibit 10.2 to the Company's current report on Form 8-K filed on November 7, 2013).
10.29 Tax Matters Agreement, dated as of July 20, 2015, by and among Pinnacle Entertainment, Inc. and Gaming and Leisure Properties, Inc.
(Incorporated by reference to Exhibit 10.1 to the Company's current report on Form 8-K filed on July 22, 2015).
10.30 # Gaming and Leisure Properties, Inc.’s Second Amended and Restated 2013 Long-Term Incentive Compensation Plan (Incorporated by
reference to Appendix A to the Company’s Definitive Proxy Statement on Schedule 14A, filed April 29, 2020).
10.31 # Form of Restricted Stock Award under the Gaming and Leisure Properties, Inc. 2013 Long-Term Incentive Compensation Plan for Awards
issued after January 1, 2020. (Incorporated by reference to Exhibit 10.30 to the Company's annual report on Form 10-K filed on February 24,
2022).
10.32 # Form of Restricted Stock Award under the Gaming and Leisure Properties, Inc. Second Amended and Restated 2013 Long-Term Incentive
Compensation Plan for Awards issued after January 1, 2021. (Incorporated by reference to Exhibit 10.31 to the Company's annual report on
Form 10-K filed on February 24, 2022).
10.33 # Form of Director Restricted Stock Award with Quarterly Vesting under the Gaming and Leisure Properties, Inc. 2013 Long-Term Incentive
Compensation Plan for Awards issued after January 1, 2020. (Incorporated by reference to Exhibit 10.32 to the Company's annual report on
Form 10-K filed on February 24, 2022).
10.34 # Form of Director Restricted Stock Award under the Gaming and Leisure Properties, Inc. Second Amended and Restated 2013 Long-Term
Incentive Compensation Plan for Awards Issued after January 1, 2022. (Incorporated by reference to Exhibit 10.33 to the Company's annual
report on Form 10-K filed on February 24, 2022).
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10.35 # Form of Restricted Stock Performance Award MSCI under the Gaming and Leisure Properties, Inc. 2013 Long-Term Incentive
Compensation Plan for Awards issued after January 1, 2020. (Incorporated by reference to Exhibit 10.34 to the Company's annual report on
Form 10-K filed on February 24, 2022).
10.36 # Form of Restricted Stock Performance Award MSCI under the Gaming and Leisure Properties, Inc. Second Amended and Restated 2013
Long-Term Incentive Compensation Plan for Awards Issued after January 1, 2021. (Incorporated by reference to Exhibit 10.35 to the
Company's annual report on Form 10-K filed on February 24, 2022).
10.37 # Form of Restricted Stock Performance Award NNN under the Gaming and Leisure Properties, Inc. 2013 Long-Term Incentive Compensation
Plan for Awards issued in 2020. (Incorporated by reference to Exhibit 10.36 to the Company's annual report on Form 10-K filed on February
24, 2022).
10.38 # Form of Restricted Stock Performance Award NNN under the Gaming and Leisure Properties, Inc. Second Amended and Restated 2013
Long-Term Incentive Compensation Plan for Awards issued in 2021. (Incorporated by reference to Exhibit 10.37 to the Company's annual
report on Form 10-K filed on February 24, 2022).
10.39 # Form of Restricted Stock Performance Award NNN under the Gaming and Leisure Properties, Inc. Second Amended and Restated 2013
Long-Term Incentive Compensation Plan for Awards issued in 2022. (Incorporated by reference to Exhibit 10.38 to the Company's annual
report on Form 10-K filed on February 24, 2022).
10.40 # Gaming and Leisure Properties, Inc. Executive Change in Control and Severance Plan. (Incorporated by reference to Exhibit 10.1 to the
Company's current report on Form 8-K, filed on February 4, 2019).
10.41 Second Amended and Restated Master Lease by and among GLP Capital, L.P., as landlord, and Tropicana Entertainment, Inc., IOC Black
Hawk Country, Inc. and Isle of Capri Bettendorf, L.L.C., as tenant, dated December 18, 2020. (Incorporated by reference to Exhibit 10.40 to
the Company's annual report on Form 10-K filed on February 24, 2022).
10.42 Separation Agreement dated July 27, 2020 by and between the Company and Steven T. Snyder (Incorporated by reference to Exhibit 10.1 to
the Company's current report on Form 8-K filed on July 29, 2020).
10.43 Amended and Restated Agreement of Limited Partnership of GLP Capital, L.P., dated as of December 29, 2021 (Incorporated by reference to
Exhibit 10.1 to the Company's current report on Form 8-K filed on December 29, 2021).
Credit Agreement dated as of May 13, 2022 by and among GLP Capital, L.P., Wells Fargo Bank, National Association, as administrative
agent, and the other agents and lenders party thereto from time to time (Incorporated by reference to Exhibit 10.1 to the Company's quarterly
report on Form 10-Q filed on July 28, 2022).
Term Loan Credit Agreement, dated as of September 2, 2022, by and among GLP Capital, L.P., Wells Fargo Bank, National Association, as
administrative agent, and the lenders party thereto (Incorporated by reference to Exhibit 10.1 to the Company's Form 8-K filed on September
8, 2022).
Amendment No. 1 to Credit Agreement, dated as of September 2, 2022, by and among GLP Capital, L.P., Wells Fargo Bank, National
Association, as administrative agent, and the lenders party thereto (Incorporated by reference to Exhibit 10.2 to the Company's Form 8-K
filed on September 8, 2022).
10.44
10.45
10.46
21* Subsidiaries of the Registrant.
22.1* List of Subsidiary Issuers of Guaranteed Securities.
23* Consent of Deloitte & Touche LLP, Independent Registered Public Accounting Firm.
31.1* Principal Executive Officer Certification pursuant to rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934.
31.2* Principal Financial Officer Certification pursuant to rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934.
32.1* Principal Executive Officer Certification pursuant to 18 U.S.C. Section 1350, As Adopted Pursuant to Section 906 of The Sarbanes - Oxley
Act of 2002.
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Principal Financial Officer Certification pursuant to 18 U.S.C Section 1350, As Adopted Pursuant to Section 906 of The Sarbanes - Oxley
Act of 2022.
32.2*
101 The following financial information from Gaming and Leisure Properties, Inc.'s Annual Report on Form 10-K for the year ended December
31, 2022, formatted in Inline XBRL: (i) Consolidated Balance Sheets, ii) Consolidated Statements of Income, (iii) Consolidated Statements
of Changes in Equity, (iv) Consolidated Statements of Cash Flows and (v) Notes to the Consolidated Financial Statements.
104 The cover page from the Company's Annual Report on Form 10-K for the year ended December 31, 2022, formatted in Inline XBRL and
contained in Exhibit 101.
# Compensation plans and arrangements for executives and others.
* Filed herewith.
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SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed
on its behalf by the undersigned, thereunto duly authorized.
GAMING AND LEISURE PROPERTIES, INC.
By:
/s/ PETER M. CARLINO
Peter M. Carlino
Chairman of the Board and
Chief Executive Officer
Dated: February 23, 2023
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the
registrant and in the capacities and on the dates indicated.
Signature
Title
Date
/s/ PETER M. CARLINO
Peter M. Carlino
/s/ DESIREE A. BURKE
Desiree A. Burke
Chairman of the Board and Chief Executive Officer
(Principal Executive Officer)
February 23, 2023
Chief Financial Officer and Treasurer (Principal
Financial Officer and Principal Accounting Officer)
February 23, 2023
/s/ CAROL LYNTON
Director
Carol Lynton
/s/ JOSEPH W. MARSHALL
Joseph W. Marshall
Director
/s/ JAMES B. PERRY
James B. Perry
/s/ BARRY F. SCHWARTZ
Barry F. Schwartz
/s/ EARL C. SHANKS
Earl C. Shanks
Director
Director
Director
/s/ E. SCOTT URDANG
Director
E. Scott Urdang
/s/ JOANNE A. EPPS
Joanne A. Epps
Director
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February 23, 2023
February 23, 2023
February 23, 2023
February 23, 2023
February 23, 2023
February 23, 2023
February 23, 2023
Exhibit 4.22
DESCRIPTION OF GAMING AND LEISURE PROPERTIES, INC.’S SECURITIES
REGISTERED PURSUANT TO SECTION 12 OF THE SECURITIES AND EXCHANGE ACT OF 1934
The following is a summary of certain information concerning Gaming and Leisure Properties, Inc.’s (“GLPI,” “we,” “us,” or “our”) securities registered
pursuant to Section 12 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”). The summaries and descriptions below do not
purport to be complete statements of the relevant provisions of GLPI’s amended and restated articles of incorporation (the “Articles of Incorporation”)
and amended and restated bylaws (the “Bylaws”). The summaries are qualified in their entirety by reference to the full text of GLPI’s Articles of
Incorporation and Bylaws, which are included as exhibits to GLPI’s Annual Report on Form 10-K for the year ended December 31, 2022, of which this
exhibit is a part.
DESCRIPTION OF CAPITAL STOCK
General
The Articles of Incorporation provide that GLPI may issue up to 500,000,000 shares of common stock, par value $0.01 per share, and 50,000,000 shares of
preferred stock, par value $0.01 per share. No shares of our preferred stock are issued and outstanding.
The issued and outstanding shares of GLPI common stock are fully paid and nonassessable. This means the full purchase price for the outstanding shares of
common stock has been paid and the holders of such shares will not be assessed any additional amounts for such shares. Any additional shares of common
stock that GLPI may issue in the future will also be fully paid and nonassessable.
Dividends
Subject to prior dividend rights of the holders of any preferred stock, applicable law and the restrictions of the Articles of Incorporation on ownership and
transfer of GLPI’s stock, holders of GLPI common stock will be entitled to receive dividends when and if declared by its board of directors out of funds
legally available for that purpose.
Liquidation
In the event of any liquidation, dissolution or winding up of GLPI after the satisfaction in full of the liquidation preferences of holders of any preferred
stock, holders of shares of our common stock will be entitled to ratable distribution of the remaining assets available for distribution to shareholders.
Voting Rights
Subject to the rights of the holders of preferred stock, applicable law and restrictions of the Articles of Incorporation on ownership and transfer of GLPI’s
stock, each share of common stock will be entitled to one vote on all matters submitted to a vote of shareholders, including the election of directors, and the
holders of common stock possess the exclusive voting power. Holders of shares of common stock will not have cumulative voting rights in the election of
directors of GLPI. Generally, all matters to be voted on by shareholders must be approved by a majority of the votes cast by the holders of shares entitled to
vote at a meeting at which a quorum is present, subject to any voting rights granted to holders of any then outstanding preferred stock.
Other Rights
Holders of GLPI’s common stock do not have any preemptive, subscription, redemption, conversion or sinking fund rights with respect to the common
stock, or any instruments convertible (directly or indirectly) into GLPI stock.
Subject to the restrictions of the Articles of Incorporation on ownership and transfer of GLPI’s stock, holders of shares of GLPI common stock generally
will have no preference or appraisal rights. Subject to the restrictions in the Articles of Incorporation on ownership and transfer of GLPI’s stock, holders of
shares of GLPI’s common stock initially will have equal dividend, liquidation and other rights.
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Trading Symbol
Our common stock is traded on the NASDAQ Global Select Market under the symbol “GLPI.”
Preferred Stock
Under the Articles of Incorporation, GLPI’s board of directors may from time to time establish and cause GLPI to issue one or more series of preferred
stock and set the terms, preferences, conversion or other rights, voting powers, restrictions, limitations as to dividends or other distributions, qualifications,
or terms or conditions of redemption of such class or series. The authority of GLPI’s board of directors with respect to each series of preferred stock
includes, but is not limited to, the determination of the following:
•
•
•
•
•
•
•
•
•
•
•
the designation of the series, which may be by distinguishing number, letter or title;
the number of shares constituting such series, including the authority to increase or decrease such number (but not below the number of shares
thereof then outstanding);
the dividend rate of the shares of such series, whether the dividends shall be cumulative and, if so, the date from which they shall be cumulative,
and the relative rights of priority, if any, of payment of dividends on shares of such series;
the dates at which dividends, if any, shall be payable;
the right, if any, of GLPI to redeem shares of such series and the terms and conditions of such redemption;
the rights of the shares in case of a voluntary or involuntary liquidation, dissolution or winding up of GLPI, and the relative rights of priority, if
any, of payment of shares of such series;
the voting power, if any, of such series and the terms and conditions under which such voting power may be exercised;
the obligation, if any, of GLPI to retire shares of such series pursuant to a retirement or sinking fund or funds of a similar nature or otherwise and
the terms and conditions of such obligations;
the terms and conditions, if any, upon which shares of such series shall be convertible into or exchangeable for shares of stock of any other class or
classes, including the price or prices or the rate or rates of conversion or exchange and the terms of adjustment, if any;
restrictions on the issuance of shares of the same series or of any other class or series; and
any other rights, preferences or limitations of the shares of such series.
Accordingly, GLPI’s board of directors, without shareholder approval, may issue preferred stock with voting, conversion, or other rights that could
adversely affect the voting power and other rights of the holders of GLPI’s common stock. Preferred stock could be issued quickly with terms calculated to
delay, defer, or prevent a change of control or other corporate action, or make removal of management more difficult. Additionally, the issuance of
preferred stock may have the effect of decreasing the market price of GLPI’s common stock and may adversely affect the voting and other rights of the
holders of GLPI’s common stock.
Restrictions on Ownership and Transfer
In order for GLPI to qualify to be taxed as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”),
shares of its stock must be beneficially owned by 100 or more persons during at least 335 days of a taxable year of twelve months (other than the first year
for which an election to qualify to be taxed as a REIT has been made) or during a proportionate part of a shorter taxable year. Also, not more than 50% of
the value of the outstanding shares of GLPI stock (after taking into account options to acquire shares of stock) may be owned, directly or indirectly, by five
or fewer individuals (as defined in the Code to include certain entities such as qualified pension plans) during the last half of a taxable year (other than the
first year for which an election to be a REIT has been made). In addition, rent from related party tenants (generally, a tenant of a REIT owned, actually or
constructively, 10% or more by the REIT, or a 10% owner of the REIT) is not qualifying income for purposes of the gross income tests under the Code. To
qualify to be taxed as a REIT, GLPI must satisfy other requirements as well.
The Articles of Incorporation contain restrictions on the ownership and transfer of GLPI’s stock that are intended to assist GLPI in complying with these
requirements. The relevant sections of the Articles of Incorporation provide that, subject to the exceptions described below, no person or entity may own, or
be deemed to own, beneficially or by virtue of the applicable constructive ownership provisions of the Code, more than 7% of the outstanding shares of
GLPI common stock (the “common
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stock ownership limit”) or more than 7% in value or in number, whichever is more restrictive, of the outstanding shares of all classes or series of GLPI
stock (the “aggregate stock ownership limit”). The common stock ownership limit and the aggregate stock ownership limit are collectively referred to as
the “ownership limits.” The person or entity that, but for operation of the ownership limits or another restriction on ownership and transfer of GLPI stock as
described below, would beneficially own or constructively own shares of GLPI stock in violation of such limits or restrictions or, if appropriate in the
context, a person or entity that would have been the record owner of such shares of GLPI stock is referred to as a “prohibited owner.”
The constructive ownership rules under the Code are complex and may cause stock owned beneficially or constructively by a group of related individuals
and/or entities to be owned beneficially or constructively by one individual or entity. As a result, the acquisition of less than 7% of the outstanding shares of
GLPI common stock or less than 7% in value or in number, whichever is more restrictive, of the outstanding shares of all classes and series of GLPI stock
(or the acquisition by an individual or entity of an interest in an entity that owns, beneficially or constructively, shares of GLPI stock) could, nevertheless,
cause that individual or entity, or another individual or entity, to own beneficially or constructively shares of GLPI stock in excess of the ownership limits.
In addition, a person that did not acquire more than 7% of our outstanding stock may become subject to these restrictions if repurchases by us cause such
person’s holdings to exceed 7% of our outstanding stock.
Pursuant to the Articles of Incorporation, GLPI’s board of directors may exempt, prospectively or retroactively, a particular shareholder (the “excepted
holder”) from the ownership limits or establish a different limit on ownership (the “excepted holder limit”) if:
•
•
no individual’s beneficial or constructive ownership of GLPI stock will result in GLPI being “closely held” under Section 856(h) of the Code
(without regard to whether the ownership interest is held during the last half of a taxable year) or otherwise failing to qualify to be taxed as a REIT
or would cause any income of GLPI that would otherwise qualify as rents from real property to fail to qualify as such; and
such shareholder does not and represents that it will not own, actually or constructively, an interest in a tenant of GLPI (or a tenant of any entity
owned or controlled by GLPI) that would cause GLPI to own, actually or constructively, more than a 9.9% interest (as set forth in Section 856(d)
(2)(B) of the Code) in such tenant (or GLPI’s board of directors determines that rent derived from such tenant will not affect GLPI’s ability to
qualify to be taxed as a REIT).
Peter M. Carlino, GLPI’s Chairman and Chief Executive Officer, the Carlino Family Trust, The Vanguard Group Inc., BlackRock, Inc. and Cohen &
Steers, Inc. have each been deemed excepted holders by GLPI’s board of directors.
As a condition of granting the waiver or establishing the excepted holder limit, GLPI’s board of directors may require an opinion of counsel or a ruling
from the IRS, in either case in form and in substance satisfactory to GLPI’s board of directors (in its sole discretion) in order to determine or ensure GLPI’s
status as a REIT and such representations and undertakings from the person requesting the exception as GLPI’s board of directors may require (in its sole
discretion) to make the determinations above. GLPI’s board of directors may impose such conditions or restrictions as it deems appropriate in connection
with granting such a waiver or establishing an excepted holder limit.
GLPI’s board of directors may from time to time increase or decrease the common stock ownership limit, the aggregate stock ownership limit or both, for
all other persons, unless, after giving effect to such increase, five or fewer individuals could beneficially own, in the aggregate, more than 49.9% in value
of GLPI’s outstanding stock. A reduced ownership limit will not apply to any person or entity whose percentage ownership of GLPI common stock or
GLPI stock of all classes and series, as applicable, is, at the effective time of such reduction, in excess of such decreased ownership limit until such time as
such person’s or entity’s percentage ownership of GLPI common stock or GLPI stock of all classes and series, as applicable, equals or falls below the
decreased ownership limit, but any further acquisition of shares of GLPI common stock or stock of all other classes or series, as applicable, will violate the
decreased ownership limit.
The Articles of Incorporation further prohibit:
•
•
any person from beneficially or constructively owning shares of GLPI stock that would result in GLPI being “closely held” under Section 856(h)
of the Code (without regard to whether the ownership interest is held during the last half of a taxable year) or otherwise cause GLPI to fail to
qualify to be taxed as a REIT;
any person from transferring shares of GLPI stock if the transfer would result in shares of GLPI stock being beneficially owned by fewer than 100
persons (determined without reference to the rules of attribution under Section 544 of the Code); and
3
•
any person from constructively owning shares of GLPI stock to the extent that such constructive ownership would cause any of GLPI’s income
that would otherwise qualify as “rents from real property” for purposes of Section 856(d) of the Code to fail to qualify as such.
Any person who acquires or attempts or intends to acquire beneficial or constructive ownership of shares of GLPI stock that will or may violate the
ownership limits or any of the other restrictions on ownership and transfer of GLPI stock described above, or who would have owned shares of GLPI stock
transferred to the charitable trust described below, must immediately give notice to GLPI of such event or, in the case of an attempted or proposed
transaction, give GLPI at least fifteen days’ prior written notice and provide GLPI with such other information as it may request in order to determine the
effect of such transfer on its status as a REIT. The foregoing restrictions on ownership and transfer of GLPI stock will not apply if GLPI’s board of
directors determines that it is no longer in GLPI’s best interests to attempt to qualify, or to continue to qualify, to be taxed as a REIT or that compliance
with the restrictions and limits on ownership and transfer of GLPI stock described above is no longer required in order for GLPI to qualify to be taxed as a
REIT.
If any transfer of shares of GLPI stock or any other event would result in any person violating the ownership limits or any other restriction on ownership
and transfer of GLPI shares described above then that number of shares (rounded up to the nearest whole share) that would cause the violation will be
automatically transferred to, and held by, a trust for the benefit of one or more charitable organizations selected by GLPI, and the intended transferee or
other prohibited owner will acquire no rights in the shares. The automatic transfer will be effective as of the close of business on the business day prior to
the date of the violative transfer or other event that results in a transfer to the trust. If the transfer to the trust as described above would not be effective, for
any reason, to prevent violation of the applicable ownership limits or any other restriction on ownership and transfer of GLPI shares described above, then
the Articles of Incorporation provide that the transfer of the shares will be null and void and the intended transferee will acquire no rights in such shares.
Shares of GLPI stock held in the trust will continue to be issued and outstanding shares. The prohibited owner will not benefit economically from
ownership of any shares of GLPI stock held in the trust and will have no rights to distributions and no rights to vote or other rights attributable to the shares
of GLPI stock held in the trust. The trustee of the trust shall have all voting rights and rights to dividends and other distributions with respect to shares held
in the trust for the exclusive benefit of the charitable beneficiary of the trust. Any distribution made before GLPI’s discovery that the shares have been
transferred to a trust as described above must be repaid by the recipient to the trustee upon demand and any dividend or other distribution authorized but
unpaid shall be paid when due to the trustee. Subject to Pennsylvania law, effective as of the date that the shares have been transferred to the trust, the
trustee will have the authority (at the trustee’s sole discretion) (i) to rescind as void any vote cast by a prohibited owner or unsuitable person, as applicable,
before GLPI’s discovery that the shares have been transferred to the trust and (ii) to recast the vote in accordance with the desires of the trustee acting for
the benefit of the charitable beneficiary of the trust. However, if GLPI has already taken irreversible corporate action, then the trustee may not rescind and
recast the vote.
Shares of GLPI stock transferred to the trustee will be deemed offered for sale to GLPI, or its designee, at a price per share equal to the lesser of (i) the
market price of the shares on the day of the event causing the shares to be held in the trust, or (ii) the market price on the date GLPI, or its designee, accepts
such offer. GLPI may reduce the amount so payable to the prohibited owner by the amount of any distribution that GLPI made to the prohibited owner
before it discovered that the shares had been automatically transferred to the trust and that are then owed by the prohibited owner to the trustee as described
above, and GLPI may pay the amount of any such reduction to the trustee for the benefit of the charitable beneficiary. GLPI will have the right to accept
such offer until the trustee has sold the shares of GLPI stock held in the trust as discussed below. Upon a sale to GLPI, the interest of the charitable
beneficiary in the shares sold will terminate, and the trustee must distribute the net proceeds of the sale to the prohibited owner and must distribute any
distributions held by the trustee with respect to such shares to the charitable beneficiary.
If GLPI does not buy the shares, the trustee must, within 20 days of receiving notice from GLPI of the transfer of shares to the trust, sell the shares to a
person or entity designated by the trustee who could own the shares without violating the ownership limits or the other restrictions on ownership and
transfer of GLPI stock. After the sale of the shares, the interest of the charitable beneficiary in the shares sold will terminate and the trustee must distribute
to the prohibited owner an amount equal to the lesser of (i) the market price of the shares on the day of the event causing the shares to be held in the trust
and (ii) the sales proceeds (net of any commissions and other expenses of sale) received by the trust for the shares. The trustee may reduce the amount
payable to the prohibited owner by the amount of any distribution that GLPI paid to the prohibited owner before GLPI discovered that the shares had been
automatically transferred to the trust and that are then owed by the prohibited owner to the trustee as described above. Any net sales proceeds in excess of
the amount payable to the prohibited owner must be paid immediately to the charitable beneficiary, together with any distributions thereon. In addition, if
prior to the discovery by GLPI that shares of stock have been transferred to a trust, such shares of stock are sold by a prohibited owner, then such shares
will be
4
deemed to have been sold on behalf of the trust and, to the extent that the prohibited owner received an amount for such shares that exceeds the amount that
such prohibited owner was entitled to receive, such excess amount will be paid to the trustee upon demand. The prohibited owner will have no rights in the
shares held by the trustee.
In addition, if GLPI’s board of directors determines in good faith that a transfer or other event has occurred that would violate the restrictions on ownership
and transfer of GLPI stock described above or that a person or entity intends to acquire or has attempted to acquire beneficial or constructive ownership of
any shares of GLPI stock in violation of the restrictions on ownership and transfer of GLPI stock described above, GLPI’s board of directors may take such
action as it deems advisable to refuse to give effect to or to prevent such transfer or other event, including, but not limited to, causing GLPI to redeem
shares of GLPI stock, refusing to give effect to the transfer of GLPI’s books or instituting proceedings to enjoin the transfer or other event.
Every person or entity who is a beneficial owner or constructive owner of more than 5% (or such lower percentage as required by the Code or the
regulations promulgated thereunder) in number of value (whichever is more restrictive) of GLPI stock, within 30 days after initially reaching such
ownership threshold and within 30 days after the end of each taxable year, must give GLPI written notice stating the shareholder’s name and address, the
number of shares of each class and series of GLPI stock that the shareholder beneficially or constructively owns and a description of the manner in which
the shares are held. Each such owner must provide to GLPI such additional information as GLPI may request in order to determine the effect, if any, of the
shareholder’s beneficial ownership on GLPI’s qualification as a REIT and to ensure compliance with the applicable ownership limits. In addition, any
person or entity that will be a beneficial owner or constructive owner of shares of GLPI stock and any person or entity (including the shareholder of record)
who is holding shares of GLPI stock for a beneficial owner or constructive owner must provide to GLPI such information as GLPI may request in order to
determine GLPI’s qualification as a REIT and to comply with the requirements of any governmental or taxing authority or to determine such compliance
and to ensure compliance with the ownership limits.
Any certificates representing shares of GLPI stock will bear a legend referring to the restrictions on ownership and transfer of GLPI stock described above.
The restrictions on ownership and transfer of GLPI stock described above could delay, defer or prevent a transaction or a change in control that might
involve a premium price for GLPI common stock or otherwise be in the best interests of GLPI shareholders.
Redemption of Securities Owned or Controlled by an Unsuitable Person or Affiliate
In addition to the restrictions set forth above, all of GLPI’s outstanding capital stock shall be held subject to applicable gaming laws. Any person owning or
controlling at least five percent of any class of GLPI’s outstanding capital stock will be required by the Articles of Incorporation to promptly notify GLPI
of such person’s identity. The Articles of Incorporation provide that capital stock of GLPI that is owned or controlled by an unsuitable person or an affiliate
of an unsuitable person is redeemable by GLPI, out of funds legally available for that redemption, to the extent required by the gaming authorities making
the determination of unsuitability or to the extent determined to be necessary or advisable by GLPI’s board of directors. From and after the redemption
date, the securities will not be considered outstanding and all rights of the unsuitable person or affiliate will cease, other than the right to receive the
redemption price. The redemption price with respect to any securities to be redeemed will be the price, if any, required to be paid by the gaming authority
making the finding of unsuitability or if the gaming authority does not require a price to be paid (including if the finding of unsuitability is made by GLPI’s
board of directors alone), the lesser of (i) the market price on the date of the redemption notice, (ii) the market price on the redemption date or (iii) the
actual amount paid by the owner thereof, in each case less a discount in a percentage (up to 100%) to be determined by GLPI’s board of directors in its sole
and absolute discretion. The redemption price may be paid in cash, by promissory note, or both, as required by the applicable gaming authority and, if not,
as determined by GLPI.
The Articles of Incorporation also provide that capital stock of GLPI that is owned or controlled by an unsuitable person or an affiliate of an unsuitable
person will be transferred to a trust for the benefit of a designated charitable beneficiary, and that any such unsuitable person or affiliate will not be entitled
to any dividends on the shares or be entitled to vote the shares or receive any proceeds from the subsequent sale of the shares in excess of the lesser of the
price paid by the unsuitable person or affiliate for the shares or the amount realized from the sale, in each case less a discount in a percentage (up to 100%)
to be determined by the GLPI board of directors in its sole and absolute discretion.
The Articles of Incorporation require any unsuitable person and any affiliate of an unsuitable person to indemnify and hold harmless GLPI and its affiliated
companies for any and all losses, costs, and expenses, including attorneys’ costs, fees and expenses, incurred by GLPI and its affiliated companies as a
result of, or arising out of, the unsuitable person’s ownership or
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control of any securities of GLPI, failure or refusal to comply with the provisions of the Articles of Incorporation, or failure to divest himself, herself or
itself of any securities when and in the specific manner required by a gaming authority or the Articles of Incorporation.
Transfer Agent
The transfer agent and registrar for GLPI common stock is Continental Stock Transfer & Trust.
DESCRIPTION OF DEBT SECURITIES
General
We issue debt securities in one or more series under an indenture dated October 30, 2013 among GLP Capital, L.P. and GLP Financing II, Inc., two wholly-
owned Subsidiaries of GLPI, as issuers, GLPI as parent guarantor and Computershare Trust Company, N.A., as successor to Wells Fargo Bank, National
Association, as trustee. The terms of the debt securities include those stated in the base indenture as supplemented by the supplemental indenture or
officer’s certificate related to such debt securities (the base indenture, as supplemented, is referred to as the “indenture”) and those made part of the
indenture by reference to the Trust Indenture Act of 1939, as amended (the “TIA”).
In this description, (1) the “Operating Partnership” refers only to GLP Capital, L.P., and not to any of its Subsidiaries, (2) “Capital Corp.” refers only to
GLP Financing II, Inc., and not to any of its Subsidiaries, (3) “Issuers,” “we,” “us” and “our” refer only to the Operating Partnership and Capital Corp., and
(4) “Guarantor” refers only to GLPI and not to any of its Subsidiaries. Other defined terms used in this description but not defined below under the caption
“-Certain Definitions” have the meanings assigned to them in the indenture.
The following description is a summary of the material provisions of our existing senior unsecured notes (as defined below) and the indenture. It does not
restate the indenture in its entirety. The summary is qualified in its entirety by reference to the full text of the base indenture and supplemental indentures,
which are included as exhibits to GLPI’s Annual Report on Form 10-K for the year ended December 31, 2022, of which this exhibit is a part.
The registered holder of an existing senior unsecured note is treated as the owner of it for all purposes. Only registered holders have rights under the
indenture.
5.375% Senior Unsecured Notes Due 2023
On October 30, 2013, the Issuers issued $500 million of 5.375% senior unsecured notes maturing on November 1, 2023 (the “2023 Notes”), all of which
were outstanding as of December 31, 2022. Interest on the 2023 Notes accrued at the rate of 5.375% per annum and was payable semi-annually on May 1
and November 1 of each year. The Issuers made each interest payment on the 2023 Notes to the holders of record on the immediately preceding April 15
and October 15. Interest on the 2023 Notes accrued from the date of original issuance or, if interest had already been paid, from the date it was most
recently paid. Interest was computed on the basis of a 360-day year comprised of twelve 30-day months. If any interest payment date, redemption date,
repurchase date or maturity date fell on a day that was not a business day, the required payment of principal, premium, if any, and/or interest could be made
on the next succeeding business day as if made on the date such payment was due, and no interest accrued on such payment for the period from and after
such interest payment date, redemption date, repurchase date or maturity date, as the case was, to the date of such payment on the next succeeding business
day. GLPI redeemed all of the 2023 Notes on February 13, 2023 (the "Redemption Date") for $507.5 million which represented 100% of the principal
amount of the 2023 Notes plus accrued interest through the Redemption Date. Notwithstanding the foregoing, in the remainder of this document, we have
described the terms of the 2023 Notes as if such 2023 Notes continued to be outstanding.
5.375% Senior Unsecured Notes Due 2026
On April 28, 2016, the Issuers issued $975 million of 5.375% senior unsecured notes maturing on April 15, 2026 (the “2026 Notes”), all of which were
outstanding as of December 31, 2022. Interest on the 2026 Notes accrues at the rate of 5.375% per annum and is payable semi-annually on April 15 and
October 15 of each year. The Issuers will make each interest payment on the 2026 Notes to the holders of record on the immediately preceding April 1 and
October 1. Interest on the 2026 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently
paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. If any interest payment date, redemption
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date, repurchase date or maturity date falls on a day that is not a business day, the required payment of principal, premium, if any, and/or interest may be
made on the next succeeding business day as if made on the date such payment was due, and no interest will accrue on such payment for the period from
and after such interest payment date, redemption date, repurchase date or maturity date, as the case may be, to the date of such payment on the next
succeeding business day.
5.75% Senior Unsecured Notes Due 2028
On May 21, 2018, the Issuers issued $500 million of 5.75% senior unsecured notes maturing on June 1, 2028 (the “2028 Notes”), all of which were
outstanding as of December 31, 2022. Interest on the 2028 Notes accrues at the rate of 5.75% per annum and is payable semi-annually on June 1 and
December 1 of each year. The Issuers will make each interest payment on the 2028 Notes to the holders of record on the immediately preceding May 15
and November 15. Interest on the 2028 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most
recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. If any interest payment date, redemption date,
repurchase date or maturity date falls on a day that is not a business day, the required payment of principal, premium, if any, and/or interest may be made
on the next succeeding business day as if made on the date such payment was due, and no interest will accrue on such payment for the period from and
after such interest payment date, redemption date, repurchase date or maturity date, as the case may be, to the date of such payment on the next succeeding
business day.
5.25% Senior Unsecured Notes Due 2025
On May 1, 2018, the Issuers issued $500 million of 5.25% senior unsecured notes maturing on June 1, 2025 (the “Initial 2025 Notes”). On September 26,
2018, the Issuers issued an additional $350 million of 5.25% senior unsecured notes maturing on June 1, 2025 (the “New 2025 Notes,” and together with
the Initial 2025 Notes, the “2025 Notes,”) which such notes became part of the same series as the Initial 2025 Notes. All of the 2025 Notes were
outstanding as of December 31, 2022. Interest on the 2025 Notes accrues at the rate of 5.25% per annum and is payable semi-annually on June 1 and
December 1 of each year. The Issuers will make each interest payment on the 2025 Notes to the holders of record on the immediately preceding May 15
and November 15. Interest on the 2025 Notes will be computed on the basis of a 360-day year comprised of twelve 30-day months. If any interest payment
date, redemption date, repurchase date or maturity date falls on a day that is not a business day, the required payment of principal, premium, if any, and/or
interest may be made on the next succeeding business day as if made on the date such payment was due, and no interest will accrue on such payment for
the period from and after such interest payment date, redemption date, repurchase date or maturity date, as the case may be, to the date of such payment on
the next succeeding business day.
5.30% Senior Unsecured Notes Due 2029
On September 26, 2018, the Issuers issued $750 million of 5.30% senior unsecured notes maturing on January 15, 2029 (the “2029 Notes”), all of which
were outstanding as of December 31, 2022. Interest on the 2029 Notes accrues at the rate of 5.30% per annum and is payable semi-annually on January 15
and July 15 of each year. The Issuers will make each interest payment on the 2029 Notes to the holders of record on the immediately preceding January 1
and July 1. Interest on the 2029 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently
paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. If any interest payment date, redemption date,
repurchase date or maturity date falls on a day that is not a business day, the required payment of principal, premium, if any, and/or interest may be made
on the next succeeding business day as if made on the date such payment was due, and no interest will accrue on such payment for the period from and
after such interest payment date, redemption date, repurchase date or maturity date, as the case may be, to the date of such payment on the next succeeding
business day.
3.350% Senior Unsecured Notes Due 2024
On August 29, 2019, the Issuers issued $400 million of 3.350% senior unsecured notes maturing on September 1, 2024 (the “2024 Notes”), all of which
were outstanding as of December 31, 2022. Interest on the 2024 Notes accrues at the rate of 3.350% per annum and is payable semi-annually on March 1
and September 1 of each year. The Issuers will make each interest payment on the 2024 Notes to the holders of record on the immediately preceding
February 15 and August 15. Interest on the 2024 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it
was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. If any interest payment date,
redemption date, repurchase date or maturity date falls on a day that is not a business day, the required payment of principal, premium, if any, and/or
interest may be made on the next succeeding business day as if made on the date such payment was due, and no interest will accrue on such payment for
the period from and after such interest payment date, redemption date, repurchase date or maturity date, as the case may be, to the date of such payment on
the next succeeding business day.
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4.000% Senior Unsecured Notes Due 2030
On August 29, 2019, the Issuers issued $700 million of 4.000% senior unsecured notes maturing on January 15, 2030 (the “2030 Notes”, all of which were
outstanding as of December 31, 2022. Interest on the 2030 Notes accrues at the rate of 4.000% per annum and is payable semi-annually on January 15 and
July 15 of each year. The Issuers will make each interest payment on the 2030 Notes to the holders of record on the immediately preceding January 1 and
July 1. Interest on the 2030 Notes will accrue from the date of original issuance or, if interest has already been paid, from the date it was most recently paid.
Interest will be computed on the basis of a 360-day year comprised of twelve 30-day months. If any interest payment date, redemption date, repurchase
date or maturity date falls on a day that is not a business day, the required payment of principal, premium, if any, and/or interest may be made on the next
succeeding business day as if made on the date such payment was due, and no interest will accrue on such payment for the period from and after such
interest payment date, redemption date, repurchase date or maturity date, as the case may be, to the date of such payment on the next succeeding business
day.
4.000% Senior Unsecured Notes Due 2031
On June 25, 2020, the Issuers issued $500 million of 4.000% senior unsecured notes maturing on January 15, 2031 (the “Initial 2031 Notes”). On August
18, 2020, the Issuers issued an additional $200 million of 4.000% senior unsecured notes maturing on January 15, 2031 (the “New 2031 Notes,” and
together with the Initial 2031 Notes, the “2031 Notes,”). All of the 2031 Notes were outstanding as of December 31, 2022. Interest on the 2031 Notes
accrues at the rate of 4.000% per annum and is payable semi-annually on January 15 and July 15 of each year. The Issuers will make each interest payment
on the 2031 Notes to the holders of record on the immediately preceding January 1 and July 1. Interest on the 2031 Notes will accrue from the date of
original issuance or, if interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year
comprised of twelve 30-day months. If any interest payment date, redemption date, repurchase date or maturity date falls on a day that is not a business day,
the required payment of principal, premium, if any, and/or interest may be made on the next succeeding business day as if made on the date such payment
was due, and no interest will accrue on such payment for the period from and after such interest payment date, redemption date, repurchase date or maturity
date, as the case may be, to the date of such payment on the next succeeding business day.
3.250% Senior Unsecured Notes Due 2032
On December 13, 2021, the Issuers issued $800 million of 3.250% senior unsecured notes maturing on January 15, 2032 (the “2032 Notes,” and together
with the 2023 Notes, the 2026 Notes, the 2028 Notes, the 2025 Notes, the 2029 Notes, the 2024 Notes, the 2030 Notes, and the 2031 Notes, the “existing
senior unsecured notes” or the “notes”). All of the 2032 Notes were outstanding as of December 31, 2022. Interest on the 2031 Notes accrues at the rate of
3.250% per annum and is payable semi-annually on January 15 and July 15 of each year. The Issuers will make each interest payment on the 2032 Notes to
the holders of record on the immediately preceding January 1 and July 1. Interest on the 2032 Notes will accrue from the date of original issuance or, if
interest has already been paid, from the date it was most recently paid. Interest will be computed on the basis of a 360-day year comprised of twelve 30-day
months. If any interest payment date, redemption date, repurchase date or maturity date falls on a day that is not a business day, the required payment of
principal, premium, if any, and/or interest may be made on the next succeeding business day as if made on the date such payment was due, and no interest
will accrue on such payment for the period from and after such interest payment date, redemption date, repurchase date or maturity date, as the case may
be, to the date of such payment on the next succeeding business day.
Brief Description of the Existing Senior Unsecured Notes and the Existing Senior Unsecured Notes Guarantee
Each of the series of existing senior unsecured notes:
•
•
•
•
•
represents general senior unsecured obligations of the Issuers;
is pari passu in right of payment with all of the Issuers’ senior indebtedness, including all of the other series of existing senior unsecured notes and
borrowings under the Credit Facility, without giving effect to collateral arrangements;
is effectively subordinated in right of payment to all of the Issuers' secured indebtedness to the extent of the value of the assets securing such
indebtedness;
is senior in right of payment to all of the Issuers’ senior subordinated or subordinated indebtedness;
is structurally subordinated to all liabilities of the Issuers’ Subsidiaries (other than Capital Corp., which is a co-Issuer of the notes); and
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•
is fully and unconditionally guaranteed by the Guarantor.
The existing senior unsecured notes are guaranteed by the Guarantor; however, the Guarantor is not subject to most of the covenants in the indenture.
The guarantee of each series of the existing senior unsecured notes:
•
•
•
•
•
represents general unsecured obligation of the Guarantor;
is pari passu in right of payment with all of the Guarantor’s senior indebtedness, including its guarantee of all of the other series of existing senior
unsecured notes and borrowings under the Credit Facility, without giving effect to collateral arrangements;
is effectively subordinated in right of payment to all of the Guarantor’s secured indebtedness to the extent of the value of the assets securing such
indebtedness;
is senior in right of payment to all of the Guarantor’s senior subordinated or subordinated indebtedness; and
is structurally subordinated to all liabilities of the Guarantor’s Subsidiaries (other than the Issuers).
The obligation of the Guarantor under its guarantee is limited as necessary to prevent that guarantee from constituting a fraudulent conveyance under
applicable law.
As of December 31, 2022, the Issuers, the Guarantor and the Issuers’ Subsidiaries had no indebtedness outstanding under the Credit Facility. The indenture
permits the Issuers and the Issuers’ Subsidiaries to incur substantial additional indebtedness and does not limit the amount of indebtedness that the
Guarantor may incur.
Additional Notes
The Issuers may issue additional notes of a series the same as or different from any of the series of the existing senior unsecured notes from time to time
under the indenture. Any issuance of additional notes is subject to the covenants set forth below under “-Certain Covenants-Limitations on Incurrence of
Indebtedness.” Any additional notes of the same series as any of the series of the existing senior unsecured notes subsequently issued will be treated as a
single series with the applicable series of the existing senior unsecured notes for all purposes under the indenture, including, without limitation, waivers,
amendments, redemptions and offers to purchase. The Issuers issue notes in denominations of $2,000 and integral multiples of $1,000.
Sinking Fund
The notes will not be entitled to the benefit of any sinking fund.
Redemption
Optional Redemption
We may redeem all or part of any series of the notes at any time at our option at a redemption price equal to the greater of:
(1) 100% of the principal amount of the notes to be redeemed, and
(2) the sum of the present values of the remaining scheduled payments of principal and interest thereon that would be due if such notes matured 90 days
prior to their maturity date (or 30 days in the case of the 2024 Notes or three months in the case of the 2032 Notes) (the “Par Call Date”) but for the
redemption thereof (exclusive of interest accrued to, but not including, the date of redemption) discounted to the date of redemption on a semi-annual basis
(assuming a 360-day year consisting of twelve 30-day months) at the Treasury Rate (or the Adjusted Treasury Rate in the case of the 2032 Notes and the
2031 Notes) plus 50 basis points (or 40 basis points in the case of the 2030 Notes, 30 basis points in the case of the 2032 Notes and the 2024 Notes and 35
basis points in the case of the 2029 Notes), plus accrued and unpaid interest on the amount being redeemed to, but not including, the date of
redemption; provided, however, that if we redeem the notes on or after the applicable Par Call Date, the redemption price will equal 100% of the principal
amount of the notes to be redeemed plus accrued and unpaid interest on the amount being redeemed to, but not including, the date of
redemption; provided, further, that installments of interest that are due and payable on any interest payment dates falling on or prior to a redemption date
shall be payable on
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such interest payment dates to the persons who were registered holders of the notes to be redeemed at the close of business on the applicable record dates.
Unless we default in our payment of the redemption price, on and after the redemption date, interest will cease to accrue on the notes or portions of such
notes called for redemption.
“Comparable Treasury Issue” means the United States Treasury security selected by the Quotation Agent as having a maturity comparable to the remaining
term of the applicable series of notes being redeemed calculated as if the maturity date of such notes was the applicable Par Call Date (as applicable, the
“Remaining Life”), that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate
debt securities of comparable maturity to the Remaining Life of such series of notes.
“Comparable Treasury Price” means, with respect to any redemption date, (1) the average of four Reference Treasury Dealer Quotations for such
redemption date, after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (2) if the Issuers are provided fewer than four
such Reference Treasury Dealer Quotations, the average of all such quotations.
“Quotation Agent” means the Reference Treasury Dealer appointed by the Issuers to act as the Quotation Agent from time to time.
“Reference Treasury Dealer” means (1) with respect to the 2030 Notes and 2024 Notes, Wells Fargo Securities, LLC and its successors, BofA Securities,
Inc. and its successors, Fifth Third Securities, Inc. and its successors and J.P. Morgan Securities LLC and its successors; (2) with respect to the 2029 Notes,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, J.P. Morgan Securities LLC and Wells Fargo Securities, LLC and their respective successors; (3) with
respect to the 2025 Notes and 2028 Notes, Wells Fargo Securities, LLC and its successors and (4) with respect to the 2026 Notes, and 2023 Notes, J.P.
Morgan Securities LLC or Merrill Lynch, Pierce, Fenner & Smith Incorporated and their respective successors; provided, however, that if any of the
foregoing shall cease to be a primary U.S. Government securities dealer in New York City (a “Primary Treasury Dealer”), we will substitute therefor
another Primary Treasury Dealer, and (5) any other Primary Treasury Dealers selected by the Issuers.
“Reference Treasury Dealer Quotations” means, with respect to each Reference Treasury Dealer and any redemption date, the average, as determined by an
Issuer, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to
the Issuers by such Reference Treasury Dealer at 5:00 p.m., New York City time, on the third business day preceding such redemption date (or in the case
of the notes that reference a Reference Treasury Dealer other than the 2026 Notes, the third business day preceding the relevant Deposit Date in connection
with the satisfaction and discharge of notes in accordance with the terms of the indenture).
“Treasury Rate” means, with respect to any redemption date, the rate per annum equal to the semi-annual equivalent yield to maturity of the Comparable
Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury
Price on such redemption date.
Gaming Redemption
In addition to the foregoing, if any Gaming Authority requires that a holder or Beneficial Owner of notes must be licensed, qualified or found suitable
under any applicable Gaming Laws and such holder or Beneficial Owner:
(1) fails to apply for a license, qualification or a finding of suitability within 30 days (or such shorter period as may be required by the applicable Gaming
Authority) after being requested to do so by the Gaming Authority, or
(2) is denied such license or qualification or not found suitable, or if any Gaming Authority otherwise requires that notes from any holder or Beneficial
Owner be redeemed, subject to applicable Gaming Laws the Issuers shall have the right, at their option:
(i) to require any such holder or Beneficial Owner to dispose of its notes within 30 days (or such earlier date as may be required by the
applicable Gaming Authority) of receipt of such notice or finding by such Gaming Authority, or
(ii) to call for the redemption of the notes of such holder or Beneficial Owner at a redemption price equal to the least of:
(A) the principal amount thereof, together with accrued interest to the earlier of the date of redemption or the date of the denial of
license or qualification or of the finding of unsuitability by such Gaming Authority,
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(B) the price at which such holder or Beneficial Owner acquired the notes, together with accrued interest to the earlier of the date of
redemption or the date of the denial of license or qualification or of the finding of unsuitability by such Gaming Authority, or
(C) such other lesser amount as may be required by any Gaming Authority.
The Issuers shall notify the trustee in writing of any such redemption as soon as practicable. The holder or Beneficial Owner applying for license,
qualification or a finding of suitability must pay all costs of the licensure or investigation for such qualification or finding of suitability.
No Mandatory Redemption
The Issuers are not required to make mandatory redemption or sinking fund payments with respect to the notes.
Selection and Notice
If less than all of the notes of any series are to be redeemed at any time, the trustee will select notes of such series for redemption as follows:
(1) if the notes are listed on any national securities exchange, in compliance with the requirements of the principal national securities exchange on which
the notes are listed; or
(2) if the notes are not listed on any national securities exchange, on a pro rata basis, by lot or by such method as the trustee deems fair and appropriate
and in accordance with DTC procedures.
No notes of $2,000 or less can be redeemed in part. Notices of redemption will be mailed by first class mail (or in the case of global notes, given pursuant
to applicable DTC procedures) at least 30 (or 15 in the case of the 2032 Notes and the 2031 Notes) but not more than 60 days before the redemption date to
each holder of notes to be redeemed at its registered address, except that (a) redemption notices may be mailed or given more than 60 days prior to a
redemption date if the notice is issued in connection with a defeasance of the notes or a satisfaction and discharge of the indenture, and (b) redemption
notices may be mailed or given less than 30 days (or 15 days in the case of the 2032 Notes and the 2031 Notes) or more than 60 days prior to a redemption
date if so required by any applicable Gaming Authority in connection with a redemption described above under the caption “—Redemption-Gaming
Redemption.”
If any note is to be redeemed in part only, the notice of redemption that relates to that note will state the portion of the principal amount of that note that is
to be redeemed. A new note in principal amount equal to the unredeemed portion of the original note will be issued in the name of the holder of notes upon
cancellation of the original note. Notes called for redemption become due on the date fixed for redemption (subject to satisfaction of any applicable
conditions precedent). Unless we default in the payment of the redemption price, on and after the redemption date, interest ceases to accrue on notes or
portions of them called for redemption. For the avoidance of doubt, the trustee shall not have any responsibility for calculating the redemption price.
Subject to applicable securities laws, the Issuers or their affiliates may at any time and from time to time purchase notes or other indebtedness. Any such
purchases may be made through open market or privately negotiated transactions with third parties or pursuant to one or more tender or exchange offers or
otherwise, upon such terms and at such prices as well as with such consideration as the Issuers or any such affiliates may determine.
Repurchase at the Option of Holders
Change of Control and Rating Decline
If a Change of Control Triggering Event occurs with respect to a series of notes other than the 2032 Notes or the 2031 Notes, each holder of such notes will
have the right to require the Issuers to repurchase all or any part (equal to $2,000 or an integral multiple of $1,000) of that holder’s notes of the applicable
series pursuant to an offer by the Issuers (a “Change of Control Offer”) on the terms set forth in the indenture, except to the extent the Issuers have
previously redeemed such notes as described under “—Redemption-Optional Redemption.” In the Change of Control Offer, the Issuers will offer a
payment in cash equal to 101% of the aggregate principal amount of notes repurchased plus accrued and unpaid interest on the notes repurchased, to the
date of purchase (the “Change of Control Payment”). Within 30 days following the occurrence of a Change of Control Triggering Event, the Issuers will
mail a notice to each holder describing the transaction or transactions that constitute, or are expected to constitute, the Change of Control Triggering Event,
and offering to repurchase notes on the date
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(the “Change of Control Payment Date”) specified in the notice, which date will be no earlier than 30 days and no later than 60 days after the date such
notice is mailed (or in the case of global notes, given pursuant to applicable DTC procedures), pursuant to the procedures required by the indenture and
described in such notice. The Issuers will comply with the requirements of Rule 14e-1 under the Exchange Act and any other securities laws and
regulations thereunder to the extent those laws and regulations are applicable in connection with the repurchase of the notes as a result of a Change of
Control Triggering Event. To the extent that the provisions of any securities laws or regulations conflict with the Change of Control provisions of the
indenture, the Issuers will comply with the applicable securities laws and regulations and will not be deemed to have breached its obligations under the
Change of Control provisions of the indenture by virtue of such conflict.
On the Change of Control Payment Date, the Issuers will, to the extent lawful:
(1) accept for payment all notes or portions of notes properly tendered pursuant to the Change of Control Offer;
(2) deposit with the paying agent an amount equal to the Change of Control Payment in respect of all notes or portions of notes properly tendered; and
(3) deliver or cause to be delivered to the trustee the notes properly accepted together with an officer’s certificate stating the aggregate principal amount
of notes or portions of notes being purchased by the Issuers.
The paying agent will promptly mail to each holder of notes properly tendered the Change of Control Payment for such notes, and the trustee will promptly
authenticate and mail (or cause to be transferred by book entry) to each holder a new note equal in principal amount to any unpurchased portion of the
notes surrendered, if any; provided that each new note will be in a principal amount of $2,000 or an integral multiple of $1,000.
The provisions described above that require the Issuers to make a Change of Control Offer following the occurrence of a Change of Control Triggering
Event will be applicable whether or not any other provisions of the indenture are applicable. Except as described above with respect to a Change of Control
Triggering Event, the indenture does not contain provisions that permit the holders of the notes to require that the Issuers repurchase or redeem the notes in
the event of a takeover, recapitalization or similar transaction.
The Issuers will not be required to make a Change of Control Offer upon the occurrence of a Change of Control Triggering Event if a third party makes the
Change of Control Offer in the manner, at the times and otherwise in
compliance with the requirements set forth in the indenture applicable to a Change of Control Offer made by the Issuers and purchases all notes properly
tendered and not withdrawn under the Change of Control Offer. Notwithstanding anything to the contrary herein, a Change of Control Offer may be made
in advance of an anticipated Change of Control Triggering Event, conditional upon such Change of Control Triggering Event.
If holders of not less than 90% in aggregate principal amount of the outstanding applicable series of notes validly tender and do not withdraw such notes in
a Change of Control Offer and the Issuers, or any third party making a Change of Control Offer in lieu of the Issuers as described above, purchase all of the
notes validly tendered and not withdrawn by such holders, the Issuers or such third party will have the right, upon not less than 30 nor more than 60 days’
prior notice, given not more than 30 days following such purchase pursuant to the Change of Control Offer described above, to redeem all notes of the
applicable series that remain outstanding following such purchase at a price in cash equal to 101% of the principal amount thereof plus accrued and unpaid
interest to, but not including the date of redemption.
The definition of “Change of Control” includes a phrase relating to the direct or indirect sale, transfer, conveyance or other disposition of “all or
substantially all” of the properties or assets of the Guarantor, the Issuers and their Subsidiaries taken as a whole. Although there is a limited body of case
law interpreting the phrase “substantially all,” there is no precise established definition of the phrase under applicable law. Accordingly, the ability of a
holder of notes to require the Issuers to repurchase its notes as a result of a sale, lease, transfer, conveyance or other disposition of less than all of the assets
of the Guarantor, the Issuers and their Subsidiaries taken as a whole to another Person or group may be uncertain.
The Credit Facility provides that certain change of control events with respect to the Issuers would constitute a default under the Credit Facility. Any future
credit agreements or other agreements to which any of the Issuers becomes a party may contain similar provisions. In the event a Change of Control
Triggering Event occurs at a time when the Issuers are prohibited from purchasing notes, the Issuers could seek the consent of their senior lenders to the
purchase of notes or could attempt to refinance the borrowings that contain such prohibition. If the Issuers do not obtain such a consent or repay such
borrowings, the Issuers will remain prohibited from purchasing notes. In such case, the Issuers’ failure to purchase tendered notes would constitute a
default under the indenture which could, in turn, constitute a default under such other indebtedness.
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Certain Covenants
Limitations on Incurrence of Indebtedness
Limitation on Total Debt. The Issuers shall not, and shall not permit any of their Subsidiaries to, incur any Indebtedness (other than Permitted Debt) if,
immediately after giving effect to the incurrence of such additional Indebtedness, the Total Debt of the Issuers and their Subsidiaries on a pro forma basis
(including pro forma application of the net proceeds from such Indebtedness) would exceed 60% of the sum of (i) Total Asset Value as of the end of the
Latest Completed Quarter and (ii) any increase in Total Asset Value since the end of the Latest Completed Quarter (such sum of (i) and (ii), “Adjusted Total
Asset Value”); provided, however, that from and after the consummation of a Significant Acquisition, such percentage shall be 65% for the fiscal quarter in
which such Significant Acquisition is consummated and the three consecutive fiscal quarters immediately succeeding such fiscal quarter.
Limitation on Secured Debt. The Issuers shall not, and shall not permit any of their Subsidiaries to, incur any Secured Debt if, immediately after giving
effect to the incurrence of such additional Secured Debt, the Secured Debt of the Issuers and their Subsidiaries on a pro forma basis (including pro
forma application of the net proceeds from such Indebtedness) would exceed 40% of Adjusted Total Asset Value.
Interest Coverage Ratio. The Issuers shall not, and shall not permit any of their Subsidiaries to, incur any Indebtedness (other than Permitted Debt) if,
immediately after giving effect to the incurrence of such additional Indebtedness, the ratio of Consolidated EBITDA to Interest Expense for the Issuers and
their Subsidiaries (the “Coverage Ratio”) for the four consecutive fiscal quarter period ending on and including the Latest Completed Quarter would be less
than 1.50 to 1.00 on a pro forma basis (including pro forma application of the net proceeds from such Indebtedness).
Limitation on Subordinated Debt and Subsidiary Guarantees. The Issuers shall not incur, create, issue, assume, guarantee or otherwise become liable for
any Indebtedness that is subordinate or junior in right of payment to any other Indebtedness of the Issuers, unless such Indebtedness is expressly
subordinated in right of payment to the notes. The foregoing does not apply to distinctions between categories of Indebtedness that exist by reason of any
Liens securing some but not all of such Indebtedness or securing such Indebtedness with greater or lesser priority or with different collateral or as a result
of provisions that apply proceeds or amounts received by the borrower, obligor or Issuer following a default or exercise of remedies in a certain order of
priority.
In addition, following the date of the indenture, no Subsidiary of the Operating Partnership (excluding Capital Corp.) will directly or indirectly guarantee,
or become jointly and severally liable with respect to any Debt Securities of the Operating Partnership (excluding, in any event, (x) Acquired Debt and
(y) guarantees of such Acquired Debt or any other Indebtedness of the Operating Partnership to the extent a guarantee is required as a result of the
assumption by the Operating Partnership of such Acquired Debt described in clause (x) pursuant to the terms thereof as they existed at the time of and after
giving effect to (and are not modified in contemplation of, other than to give effect to) the assumption of or acquisition of such Acquired Debt) issued after
the date of the indenture, unless a guarantee is provided in respect of the notes by such Subsidiary.
Maintenance of Total Unencumbered Assets
The Issuers and their Subsidiaries shall maintain Total Unencumbered Asset Value of not less than 150% of Unsecured Debt, in each case calculated as of
the end of the Latest Completed Quarter.
Reports
Whether or not required by the Securities and Exchange Commission (the “SEC”), so long as any notes are outstanding, the Issuers will furnish to the
trustee with written instructions for mailing (or in the case of global notes, delivery pursuant to applicable DTC procedures) to the holders of notes, within
30 days after the time periods specified in the SEC’s rules and regulations:
(1) all quarterly and annual financial information that is filed or that would be required to be contained in a filing with the SEC on Forms 10-Q and 10-
K if or as if the Issuers were required to file such forms, including a “Management’s Discussion and Analysis of Financial Condition and Results of
Operations” and, with respect to the annual information only, a report on the annual financial statements by the Issuers’ certified independent accountants;
and
(2) all current reports that would be required to be filed with the SEC on Form 8-K if the Issuers were required to file such reports.
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The availability of the foregoing materials on the SEC’s EDGAR service (or any successor thereto) shall be deemed to satisfy the Issuers’ obligations to
furnish such materials to the trustee with written instructions for mailing (or in the case of global notes, delivery pursuant to applicable DTC procedures) to
the holders of notes; provided, however, that the trustee shall have no obligation whatsoever to determine whether or not such information, documents or
reports have been filed pursuant to the “EDGAR” system (or its successor).
Delivery of such reports, information and documents to the trustee is for informational purposes only and the trustee’s receipt of such shall not constitute
constructive notice of any information contained therein or determinable from information contained therein, including the Issuers’ compliance with any of
its covenants under the indenture (as to which the trustee is entitled to rely exclusively on officer’s certificates).
In addition, the Issuers have agreed that, for so long as any 2026 Notes remain outstanding, if the Issuers are not required to file with the SEC the reports
required by the first paragraph of this covenant, it will furnish to the holders of the 2026 Notes and to securities analysts and prospective investors, upon
their request, the information required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act of 1933, as amended.
Notwithstanding the foregoing, for so long as the Guarantor guarantees the notes (or in the event that another parent entity of the Issuers becomes a
guarantor of the notes), the Issuers may satisfy their obligations to furnish the reports and other information described above by furnishing such reports
filed by, or such information of, the Guarantor (or such other parent guarantor, respectively) and the availability of the Guarantor’s (or such other parent
guarantor’s, as applicable) information on the SEC’s EDGAR service (or any successor thereto) shall be deemed to satisfy such obligation.
Penn Master Lease
The Issuers will not enter into any amendment to the Penn Master Lease if such amendment would materially impair the ability of the Issuers to satisfy
their obligations to make payments on the notes other than the 2032 Notes and the 2031 Notes; provided that amendments of the Penn Master Lease (and
corresponding rent reduction) pursuant to the terms of the Penn Master Lease in connection with an asset sale made in accordance with the Penn Master
Lease shall not be deemed to materially impair the ability of the Issuers to satisfy their obligations to make payments on the notes or to materially impair
the rights and remedies of the holders of the notes.
Consolidation, Merger and Sale of Assets
Each Issuer may not, directly or indirectly: (x) consolidate or merge with or into another Person (whether or not such Issuer is the surviving entity); or
(y) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of such Issuer and its Subsidiaries taken as a whole
to another Person unless:
(1) either (a) such Issuer is the surviving Person; or (b) the Person formed by or surviving any such consolidation or merger (if other than such Issuer) or
to which such sale, assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of the United
States, any state of the United States or the District of Columbia (provided that if such Person is not a corporation, a co-obligor of the notes is a corporation
organized or existing under such laws);
(2) the Person formed by or surviving any such consolidation or merger (if other than an Issuer) or the Person to which such sale, assignment, transfer,
conveyance or other disposition has been made assumes all the obligations of such Issuer under the notes and the indenture and, in the case of the 2023
Notes, the Registration Rights Agreement, pursuant to agreements reasonably satisfactory to the trustee; and
(3) immediately after such transaction no default or event of default exists with respect to the notes.
The Guarantor may not, directly or indirectly: (x) consolidate or merge with or into another Person (whether or not the Guarantor is the surviving
corporation); or (y) sell, assign, transfer, convey or otherwise dispose of all or substantially all of the properties or assets of the Guarantor and its
Subsidiaries taken as a whole to another Person unless:
(1) either (a) the Guarantor is the surviving corporation; or (b) the Person formed by or surviving any such consolidation or merger (if other than the
Guarantor) or to which such sale, assignment, transfer, conveyance or other disposition has been made is a Person organized or existing under the laws of
the United States, any state of the United States or the District of Columbia;
(2) the Person formed by or surviving any such consolidation or merger (if other than the Guarantor) or the Person to which such sale, assignment,
transfer, conveyance or other disposition has been made assumes all the obligations of the Guarantor
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under the notes and the indenture and, in the case of the 2023 Notes, the Registration Rights Agreement, pursuant to agreements reasonably satisfactory to
the trustee; and
(3) immediately after such transaction no default or event of default exists with respect to the notes.
Upon any sale, assignment, transfer, conveyance or other disposition of all or substantially all of an Issuer’s or the Guarantor’s, as applicable, and its
Subsidiaries’ assets, taken as a whole, in compliance with the provisions of this “Consolidation, Merger and Sale of Assets” covenant, such Issuer or the
Guarantor, as applicable, will be released from the obligations under the notes or its guarantee, respectively, and the indenture and, in the case of the 2023
Notes, the Registration Rights Agreement, except with respect to any obligations that arise from, or are related to, such transaction.
This “Consolidation, Merger and Sale of Assets” covenant will not apply to:
(1) a merger, consolidation, sale, assignment, transfer, conveyance or other disposition of assets between or among the Guarantor, the Issuers (or an
Issuer) or any of the Issuers’ Subsidiaries;
(2) a merger between the Issuers (or an Issuer), the Guarantor or any Subsidiary respectively, and an Affiliate of an Issuer, the Guarantor or such
Subsidiary incorporated or formed solely for the purpose of reincorporating or reorganizing an Issuer, the Guarantor or such Subsidiary in another state of
the United States or changing the legal domicile or form of an Issuer, the Guarantor or such Subsidiary or for the sole purpose of forming or collapsing a
holding company structure;
(3) the lease of all or substantially all of the real estate assets of the Guarantor or any Issuer, or any of their respective Subsidiaries, to Penn or its
Subsidiaries or another operator pursuant to the Penn Master Lease, Pinnacle Master Lease or another real estate lease or leases; or
(4) except with respect to the 2032 Notes and the 2031 Notes, the Penn Transactions and any transactions related thereto.
The description above includes a phrase relating to the sale or disposition of “all or substantially all” of the properties or assets of the Issuers or the
Guarantor, and their respective Subsidiaries. Although there is a limited body of case law interpreting the phrase “substantially all,” there is no precise
established definition of the phrase under applicable law.
Certain Definitions
“2013 Offering Memorandum” means the offering memorandum of the Issuers, dated October 23, 2013.
“Acquired Debt” means, with respect to any specified Person:
(1) Indebtedness of any other Person existing at the time such other Person is merged with or into or becomes a Subsidiary of such specified Person,
whether or not such Indebtedness is incurred in connection with, or in contemplation of, such other Person merging with or into, or becoming a Subsidiary
of, such specified Person; and
(2) Indebtedness secured by a Lien encumbering any asset acquired by such specified Person.
“Adjusted Treasury Rate” means, with respect to any redemption date, the rate per year equal to the arithmetic mean of the weekly average yield to maturity
(representing the average of the daily rates for the immediately preceding week) available through the most recent Statistical Release under the heading
“Week Ending” for “U.S. Government Securities—Treasury Constant Maturities” for the maturity (rounded to the nearest month) corresponding to the
remaining term of the notes being redeemed as of such redemption date, calculated as if the maturity date of such notes was the Par Call Date (as
applicable, the “Remaining Life”). If no maturity exactly corresponds to such Remaining Life, yields for the next shortest and next longest published
maturities most closely corresponding to such Remaining Life shall be calculated pursuant to the immediately preceding sentence and the Adjusted
Treasury Rate shall be interpolated or extrapolated from such yields on a straight-line basis, rounding in each of such relevant periods to the nearest month.
For the purposes of calculating the Adjusted Treasury Rate, the most recent Statistical Release published at least two business days prior to the redemption
date (or at least two business days prior to the relevant Deposit Date in connection with a satisfaction and discharge of the such notes in accordance with
the terms of the indenture) shall be used.
“Asset Value” means, at any date of determination, the sum of:
(1) in the case of any Income Property (or group of Income Properties, including, without limitation, the Penn Master Lease Properties), the Capitalized
Value of such Income Property (or group of Income Properties) as of such date; provided, however, that (except, in the case of the 2023 Notes, with respect
to the Original Master Lease Properties, the Ohio Development Facilities, the Hollywood Casino Baton Rouge and the Hollywood Casino Perryville) the
Asset Value of each Income Property
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(other than a former Development Property or Redevelopment Property) during the first four complete fiscal quarters following the date of acquisition
thereof shall be the greater of (i) the acquisition price thereof and (ii) the Capitalized Value thereof (provided that the Asset Value shall be the acquisition
price thereof if results of one full fiscal quarter after the acquisition thereof are not available with respect to such Income Property (or group of Income
Properties) (and after results of one full fiscal quarter after the acquisition thereof are available, the Capitalized Value thereof may be determined by
annualizing such results) including for purposes of determining any increase in Total Asset Value since the end of the Latest Completed
Quarter); provided, further, that an adjustment shall be made to the Asset Value of any Income Property (in an amount reasonably determined by an Issuer)
as new tenancy leases are entered into, or existing tenancy leases terminate or expire, in respect of such Income Property;
(2) in the case of any Development Property or Redevelopment Property (or former Development Property or Redevelopment Property) prior to the date
when financial results are available for at least one complete fiscal quarter following completion or opening of the applicable development project, 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); and
(3) 100% of the book value (determined in accordance with GAAP) of any undeveloped land owned or leased as of such date of determination.
“Beneficial Owner” has the meaning assigned to such term in Rule 13d-3 and Rule 13d-5 under the Exchange Act. The terms “Beneficially Owns” and
“Beneficially Owned” have a corresponding meaning.
“Capitalized Value” means, with respect to the Penn Master Lease Properties or any other group of related properties or any other property, the Property
EBITDA of the Penn Master Lease Properties or such other group of related properties or such property, as the case may be, for the most recent four
completed fiscal quarters divided by 8.25% (or 9.0% in the case of the 2023 Notes).
“Change of Control” means the occurrence of any of the following:
(1) the direct or indirect sale, transfer, conveyance or other disposition (other than by way of merger or consolidation), in one or a series of related
transactions, of all or substantially all of the properties or assets of the Guarantor, the Operating Partnership and their Subsidiaries taken as a whole to any
“person” (as that term is used in Section 13(d) of the Exchange Act); provided, however, that for the avoidance of doubt, the lease of all or substantially all
of the real estate assets of the Guarantor or any Issuer or any of their respective subsidiaries, to Penn or its Subsidiaries or to another operator pursuant to
the Penn Master Lease or another real estate lease or leases shall not constitute a Change of Control;
(2) the adoption by shareholders or partners of a plan relating to the liquidation or dissolution of the Guarantor or the Operating Partnership;
(3) the consummation of any transaction (including any merger or consolidation) the result of which is that any “person” (as defined above), other than
any holding company which owns 100% of the Voting Stock of the Guarantor (so long as no Change of Control would otherwise have occurred in respect
of the Voting Stock of such holding company), becomes the Beneficial Owner, directly or indirectly, of more than 50% of the Voting Stock of the
Guarantor, measured by voting power rather than number of shares;
(4) (i) the Guarantor ceases to own, directly or indirectly, more than 50% of the Voting Stock of the Operating Partnership or (ii) the sole general partner
of the Operating Partnership ceases to be the Guarantor or one or more of the Guarantor’s wholly owned subsidiaries; or
(5) the first day on which a majority of the members of the Board of Directors of the Guarantor are not Continuing Directors.
For purposes of this definition, (1) no Change of Control shall be deemed to have occurred solely as a result of a transfer of assets among the Guarantor,
any Issuer and any of their respective Subsidiaries and (2) a Person shall not be deemed to have beneficial ownership of securities subject to a stock
purchase agreement, merger agreement or similar agreement until the consummation of the transactions contemplated by such agreement.
“Change of Control Triggering Event” means the occurrence of both (i) a Change of Control and (ii) a Rating Decline.
“Consolidated EBITDA” means, for the applicable test period, the net income (or net loss) of the Issuers and their Subsidiaries for such period, determined
on a consolidated basis in accordance with GAAP, except to the extent that GAAP is not applicable, including, without limitation, with respect to the
determination of all extraordinary, non-cash and non-recurring items ((x) excluding, without duplication, gains (or losses) from dispositions of depreciable
real estate investments,
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property valuation losses and impairment charges and (y) before giving effect to cash dividends on preferred units of the Issuers or charges resulting from
the redemption of preferred units of the Issuers attributable to the Issuers and their Subsidiaries for such period determined on a consolidated basis in
conformity with GAAP);
(1) plus, without duplication and solely to the extent already deducted (and not added back) in arriving at such net income (or net loss), the sum of the
following amounts for such period:
(a) interest expense (whether paid or accrued and whether or not capitalized);
(b) income tax expense;
(c) depreciation expense;
(d) amortization expense;
(e) extraordinary, non-recurring and unusual items, charges or expenses (including, without limitation, impairment charges, fees, costs and
expenses relating to the Penn Transactions, prepayment penalties and costs, fees or expenses incurred in connection with any capital markets
offering, debt financing, or amendment thereto, redemption or exchange of indebtedness, lease termination, business combination, acquisition,
disposition, recapitalization or similar transaction (regardless of whether such transaction is completed));
(f) expenses and losses associated with hedging agreements;
(g) expenses and losses resulting from fluctuations in foreign exchange rates;
(h) other non-cash items, charges or expenses reducing net income (or increasing net loss) (other than items that will require cash payments and
for which an accrual or reserve is, or is required by GAAP to be, made in which case, at the election of the Issuers such items may be added back
when accrued and deducted from net income when paid in cash, or given effect (and not added back to net income) when accrued or reserved);
(i) the amount of integration costs deducted (and not added back) in such period in computing the net income (or net loss);
(j) severance, relocation costs, signing costs, retention or completion bonuses, transition costs, curtailments or modifications to pension and post-
retirement employee benefit plans (including any settlement of pension liabilities);
(k) in the case of the 2032 Notes and the 2031 Notes, equity-based compensation; and
(l) to the extent not included in net income or, if otherwise excluded from Consolidated EBITDA due to the operation of clause (2)(a) below, the
amount of insurance proceeds received during such period, or after such period and on or prior to the date the calculation is made with respect to
such period, attributable to any property which has been closed or had operations curtailed for such period; provided that such amount of insurance
proceeds shall only be included pursuant to this clause (l) to the extent of the amount of insurance proceeds plus Consolidated EBITDA
attributable to such property for such period (without giving effect to this clause (k)) does not exceed Consolidated EBITDA attributable to such
property during the most recent four consecutive fiscal quarter period that such property was fully operational (or if such property has not been
fully operational for the most recent such period prior to such closure or curtailment, the Consolidated EBITDA attributable to such property
during the consecutive fiscal quarter period prior to such closure or curtailment (for which financial results are available) annualized over four
fiscal quarters);
(2) minus, without duplication and solely to the extent included in arriving at such net income (or net loss), the sum of the following amounts for such
period:
(a) extraordinary, non-recurring and unusual gains (other than insurance proceeds);
(b) gains attributable to hedging agreements;
(c) non-cash gains resulting from fluctuations in foreign exchange rates; and
(d) other non-cash gains increasing net income (or decreasing net loss) other than accruals in the ordinary course.
For purposes of this definition, net income (net loss) shall only include the Issuers’ Ownership Share of net income (net loss) of their non-wholly owned
Subsidiaries and Unconsolidated Affiliates and, accordingly, there shall be no deduction from net income or Consolidated EBITDA for non-controlling or
minority interests in such Persons.
Consolidated EBITDA will be adjusted, without duplication, to give pro forma effect: (x) in the case of any assets having been placed-in-service or
removed from service since the beginning of the period and on or prior to the date of determination, to
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include or exclude, as the case may be, any Consolidated EBITDA earned or eliminated as a result of the placement of such assets in service or removal of
such assets from service as if the placement of such assets in service or removal of such assets from service occurred at the beginning of the period; and
(y) in the case of any acquisition or disposition of any asset or group of assets since the beginning of the period and on or prior to the date of determination,
including, without limitation, by merger, or stock or asset purchase or sale, to include or exclude, as the case may be, any Consolidated EBITDA earned or
eliminated as a result of the acquisition or disposition of those assets as if the acquisition or disposition occurred at the beginning of the period. For
purposes of calculating Consolidated EBITDA, all amounts shall be as reasonably determined by an Issuer, and in accordance with GAAP except to the
extent that GAAP is not applicable, including, without limitation, with respect to the determination of extraordinary, non-cash or non-recurring items.
“Consolidated Financial Statements” means, with respect to any Person, collectively, the consolidated financial statements and notes to those financial
statements, of that Person and its Subsidiaries prepared in accordance with GAAP.
“Continuing Directors” means, as of any date of determination, any member of the Board of Directors of the Guarantor who:
(1) was a member of such Board of Directors on the date of the indenture; or
(2) was nominated for election or elected to such Board of Directors with the approval of a majority of the continuing directors under clause (1) or this
clause (2) who were members of such Board at the time of such nomination or election.
“Credit Facility” means the Credit Agreement, dated October 28, 2013, among the Operating Partnership, as the Borrower, JPMorgan Chase Bank, N.A., as
Administrative Agent, L/C Issuer and Swingline Lender and the parties named therein as Co-Syndication Agents, Documentation Agents, Joint Physical
Bookrunners and Joint Lead Arrangers, and the lenders from time to time party thereto, including any related notes, guarantees, instruments and
agreements executed in connection therewith, and as amended, modified, renewed, refunded, restructured, replaced or refinanced from time to time
including increases in principal amount (whether the same are provided by the original agents and lenders under such Credit Facility or other agents or
other lenders).
“Credit Facilities” means one or more debt facilities or commercial paper facilities (providing for revolving credit loans, term loans, other loans,
receivables financing (including through the sale of receivables to such lenders or to special purpose entities formed to borrow from such lenders against
such receivables) or letters of credit) or debt securities, including any related notes, guarantees, collateral documents, agreements relating to swap or other
hedging obligations, and other instruments, agreements and documents executed in connection therewith, in each case as amended, restated, modified,
renewed, refunded, replaced, restructured or otherwise refinanced in whole or in part from time to time by one or more agreements, facilities (whether or
not in the form of a debt facility or commercial paper facility) or instruments.
“Debt Securities” means any debt securities, as such term is commonly understood, issued in any public offering or private placement in an aggregate
principal amount of $100.0 million or more.
“Development Property” means real property (a) acquired for, or currently under, development into an Income Property that, in accordance with GAAP,
would be classified as an asset on the consolidated balance sheet of the Issuers and their Subsidiaries and (b) of the type described in clause (a) of this
definition to be (but not yet) acquired by the Issuers or any of their Subsidiaries upon completion of construction pursuant to a contract in which the seller
of such real property is required to build, develop or renovate prior to, and as a condition precedent to, such acquisition.
“Fitch” means Fitch Ratings, Inc., doing business as Fitch Ratings, or any successor thereto.
“GAAP” means generally accepted accounting principles set forth as of the relevant date in the opinions and pronouncements of the Accounting Principles
Board of the American Institute of Certified Public Accountants and statements and pronouncements of the Financial Accounting Standards Board (or
agencies with similar functions of comparable stature and authority within the U.S. accounting profession), including, without limitation, any Accounting
Standards Codifications, which are applicable to the circumstances as of the date of determination; provided that with respect to the 2032 Notes and the
2031 Notes, if, as of a particular date as of which compliance with the covenants contained in the indenture is being determined, there have been changes in
generally accepted accounting principles from those that applied to the consolidated financial statements of either Issuer or the Guarantor for the year ended
December 31, 2019, the Issuers may, in their sole discretion, determine compliance with the covenants contained in the indenture using generally accepted
accounting principles, consistently applied, as in effect as of the end of any fiscal quarter selected by the Issuers, in its sole discretion, that is on or after
December 31, 2019 and prior to the date as of which compliance with the covenants in the indenture is being determined (“Fixed GAAP”), and, solely for
purposes of calculating the covenants as of such date, “GAAP” shall mean Fixed GAAP; provided further that, with respect to the notes other than the 2023
Notes, and in the case or GAAP or Fixed GAAP with respect to the 2032 Notes and the 2031
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Notes, (1) any lease that is accounted for by any Person as an operating lease, (2) the Pinnacle Master Lease and (3) any similar lease to either lease
referred to in clauses (1) and (2) and entered into after the issue date for the applicable series of existing senior unsecured notes by any Person may, in the
sole discretion of the Operating Partnership, be accounted for as an operating lease for purposes of such notes and the indenture with respect to such notes
(and shall not constitute a capitalized lease).
“Gaming Approval” means any and all approvals, licenses, authorizations, permits, consents, rulings, orders or directives (a) relating to any gaming
business (including pari-mutuel betting) or enterprise, including to enable the Issuers or any of their Subsidiaries or affiliates to engage in or manage the
casino, gambling, horse racing or gaming business or otherwise continue to conduct or manage such business substantially as is presently conducted or
managed or contemplated to be conducted or managed or (b) required by any Gaming Law.
“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 operation (or proposed gaming operation) owned, managed or operated by the Issuers or any of their Subsidiaries.
“Gaming Facility” means any gaming or pari-mutuel wagering establishment, including any casino or “racino,” and other property or assets ancillary
thereto or used in connection therewith, including any casinos, hotels, resorts, racetracks, off-track wagering sites, theaters, parking facilities, recreational
vehicle parks, timeshare operations, retail shops, restaurants, other buildings, restaurants, theatres, related or ancillary businesses, land, golf courses and
other recreation and entertainment facilities, marinas, vessels, barges, ships and equipment.
“Gaming Laws” means all applicable provisions of all: (a) constitutions, treaties, statutes or laws governing Gaming Facilities (including card club casinos
and pari-mutuel racetracks) 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 or
managed by the Issuers or any of their Subsidiaries or affiliates within its jurisdiction; (b) Gaming Approvals; and (c) orders, decisions, determinations,
judgments, awards and decrees of any Gaming Authority.
“Income Property” means any real or personal property or assets or vessels (including any personal property ancillary thereto or used in connection
therewith or in support thereof) owned, operated or leased or otherwise controlled by the Issuers or their Subsidiaries 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 during the period such property or assets or vessels are Development Properties, Redevelopment Properties
or undeveloped land as reasonably determined by an Issuer.
“Indebtedness” means, as of any date of determination, all indebtedness for borrowed money of the Issuers and their Subsidiaries that is included as a
liability on the Consolidated Financial Statements of the Issuers in accordance with GAAP, excluding: (i) any indebtedness to the extent Discharged or, in
the case of the notes other than the 2023 Notes, to the extent secured by cash, cash equivalents or marketable securities (it being understood that cash
collateral shall be deemed to include cash deposited with a trustee or other agent with respect to third party indebtedness), (ii) Intercompany Debt, (iii) all
liabilities associated with customary exceptions to non-recourse indebtedness, such as for fraud, misapplication of funds, environmental indemnities,
voluntary bankruptcy, collusive involuntary bankruptcy and other similar exceptions and (iv) any redeemable equity interest in the Issuers; provided that in
the case of the notes other than the 2023 Notes, Indebtedness of a Subsidiary of any of the Issuers that is not a wholly owned Subsidiary of the Issuers shall
be reduced to reflect the Issuers’ proportionate interest therein.
“Intercompany Debt” means, as of any date, Indebtedness to which the only parties are the Guarantor, the Issuers and any of their respective Subsidiaries as
of such date; provided, however, that with respect to any such Indebtedness of which any of the Issuers is the borrower, such Indebtedness is subordinate in
right of payment to the notes.
“Interest Expense” means, for any period of time, the aggregate amount of interest payable in cash on Indebtedness of the Issuers and their Subsidiaries, net
of interest income and payments received under swap and other hedging agreements or arrangements relating to interest rates, and excluding (i) any
commitment, upfront, arrangement or structuring fees or premiums (including redemption and prepayment premiums) or original issue discount,
(ii) interest reserves funded from the proceeds of any Indebtedness, (iii) any cash costs associated with breakage in respect of hedging agreements for
interest rates, (iv) all cash interest expense consisting of liquidated damages for failure to timely comply with registration rights obligations and financing
fees, and (v) amortization of deferred financing costs; provided that the components of Interest Expense relating to a Subsidiary
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of any of the Issuers that is not a wholly owned Subsidiary of the Issuers shall be reduced to reflect the Issuers’ proportionate interest therein.
“Latest Completed Quarter” means, as of any date, the most recently ended fiscal quarter of the Issuers for which Consolidated Financial Statements of the
Issuers (or the Guarantor or another parent guarantor, as applicable) have been completed, it being understood that at any time when the Issuers (or the
Guarantor or another parent guarantor, as applicable) are subject to the informational requirements of the Exchange Act, and in accordance therewith file
annual and quarterly reports with the SEC, the term “Latest Completed Quarter” shall be deemed to refer to the fiscal quarter covered by the Issuers’ (or the
Guarantor’s or another parent guarantor’s, as applicable) most recently filed Quarterly Report on Form 10-Q, or, in the case of the last fiscal quarter of the
year, the Issuers’ (or the Guarantor’s or another parent guarantor’s, as applicable) Annual Report on Form 10-K.
“Lien” means, with respect to any asset (without duplication), any lien, security interest or other type of preferential arrangement for security, including,
without limitation, the lien or retained security title of a conditional vendor; provided that, for purposes hereof, “Lien” shall not include any Lien related to
Indebtedness that has been Discharged or otherwise satisfied by the Issuers or any of their Subsidiaries in accordance with the provisions thereof, including
through the deposit of cash, cash equivalents or marketable securities (it being understood that cash collateral shall be deemed to include cash deposited
with a trustee with respect to third party indebtedness).
“Ohio Development Facilities” means the properties under development as of the issue date of the 2023 Notes in Dayton, Ohio and Mahoning Valley, Ohio.
“Original Master Lease Properties” means the Penn Master Lease Properties as of the date of the Penn Master Lease.
“Ownership Share” means, with respect to any Subsidiary (other than a wholly owned Subsidiary of any of the Issuers) or any Unconsolidated Affiliate of
the Issuers, the Issuers’ relative direct and indirect economic interest (calculated as a percentage) in such Subsidiary or Unconsolidated Affiliate determined
in accordance with the applicable provisions of the declaration of trust, articles or certificate of incorporation, articles of organization, partnership
agreement, joint venture agreement or other applicable organizational document of such Subsidiary or Unconsolidated Affiliate.
“Penn” means Penn Entertainment, Inc., a Pennsylvania corporation.
“Penn Master Lease” means that certain Master Lease, dated as of November 1, 2013, between the Operating Partnership (and any Subsidiaries of the
Operating Partnership acting as landlord or co-landlord) and the Penn Tenant, as it may be amended, supplemented or modified from time to time.
“Penn Master Lease Guaranty” means the Guaranty of the Penn Master Lease by Penn in favor of the Operating Partnership or a Subsidiary thereof.
“Penn Master Lease Properties” means, as of any date of determination, the real properties that are leased to Penn Tenant pursuant to the Penn Master
Lease.
“Penn Notes” means the 2023 Notes.
“Penn Notes Issue Date” means October 30, 2013, with respect to the 2023 Notes.
“Penn Spin-Off” means the spin-off of the Guarantor from Penn to the shareholders of Penn in November 2013, which resulted in the Operating Partnership
having title to substantially all of the real estate assets held by Penn prior to the spin-off, and including the entering into by the Penn Tenant and the
Operating Partnership (or one or more Subsidiaries of the Operating Partnership acting as landlord or co-landlord) of the Penn Master Lease.
“Penn Tenant” means Penn Tenant, LLC, a Pennsylvania limited liability company, in its capacity as tenant under the Penn Master Lease, and its successors
in such capacity.
“Penn Transactions” means, collectively, (a) the Penn Spin-Off and the series of corporate restructurings and other transactions entered into in connection
with the foregoing, the acquisition by the Guarantor of the GLPI Assets (as defined in the 2013 Offering Memorandum) and the entering into of the Penn
Master Lease, (b) the issuance of the Penn Notes (and the Issuers’ 4.375% Senior Notes due 2018, which have been redeemed in full as of the date hereof)
and the entering into of the Credit Agreement on October 28, 2013, (c) the payment of the earnings and profits purge described in the 2013 Offering
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Memorandum, (d) any other transactions defined as “Transactions” in the 2013 Offering Memorandum and (e) the payment of fees and expenses in
connection with the foregoing.
“Permitted Debt” means:
(1) Indebtedness incurred under the Credit Facilities on or prior to the date of the indenture; and
(2) Indebtedness represented by the existing senior unsecured notes.
“Permitted Replacement Lease” means (a) any new lease entered into pursuant to Section 17.1(f) of the Penn Master Lease, (b) any new lease entered into
with a Qualified Successor Tenant or (c) any assignment of the Penn Master Lease to a Qualified Successor Tenant, in each case, whether in respect of all
or a portion of the gaming facilities subject to the Penn Master Lease.
“Person” means any individual, corporation, partnership, joint venture, association, joint-stock company, trust, unincorporated organization, limited
liability company or government or other entity.
“Pinnacle” means Pinnacle Entertainment, Inc., a Delaware corporation.
“Pinnacle Master Lease” means that certain master lease, dated as of April 28, 2016, between, Pinnacle MLS, LLC, as tenant, and Gold Merger Sub, LLC
(as successor to Pinnacle), as landlord, as such Master Lease may be amended, supplemented or modified from time to time.
“pro forma basis” means:
(1) For purposes of calculating the amount of Total Debt or Secured Debt or Unsecured Debt under “—Certain Covenants-Limitations on Incurrence of
Indebtedness-Limitation on Total Debt” and “—Limitation on Secured Debt,” there shall be excluded Indebtedness to the extent secured by cash, cash
equivalents or marketable securities (it being understood that cash collateral shall be deemed to include cash deposited with a trustee or other agent with
respect to third party indebtedness) or which has been repaid, discharged, defeased (whether by covenant or legal defeasance), retired, repurchased or
redeemed or otherwise satisfied on or prior to the date such calculation is being made or for which the Guarantor, the Issuers or any of their Subsidiaries
has irrevocably made a deposit to repay, defease (whether by covenant or legal defeasance), discharge, repurchase, retire or redeem or otherwise satisfy or
called for redemption, defeasance (whether by covenant or legal defeasance), discharge, repurchase or retirement, on or prior to the date such calculation is
being made (collectively, “Discharged”);
(2) For purposes of calculating the Coverage Ratio:
(a) in the event that the Issuers or any of their Subsidiaries incurs, assumes, guarantees or Discharges any Indebtedness (other than ordinary
working capital borrowings) subsequent to the commencement of the period for which the Coverage Ratio is being calculated and on or prior to
the date such calculation is being made, then the Coverage Ratio will be calculated giving pro forma effect thereto, and the use of the proceeds
therefrom (including any such transaction giving rise to the need to calculate the Coverage Ratio), in each case, as if the same had occurred at the
beginning of the applicable four-quarter period and Interest Expense relating to any such Indebtedness that has been Discharged or, in the case of
the notes other than the 2023 Notes, to the extent secured by cash, cash equivalents or marketable securities (it being understood that cash
collateral shall be deemed to include cash deposited with a trustee or other agent with respect to third party indebtedness) shall be excluded;
(b) acquisitions or investments that have been made by the Issuers or any of their Subsidiaries, including through mergers or consolidations and
including any related financing transactions, during the four-quarter period or subsequent to such period and on or prior to the date such
calculation is being made, and the change in Consolidated EBITDA resulting therefrom, will be given pro forma effect as if they had occurred on
the first day of the four-quarter period, and Consolidated EBITDA for such period shall include the Consolidated EBITDA of the acquired entities
or applicable to such investments, and related transactions, and shall otherwise be calculated on a pro forma basis;
(c) (i) any Person that is a Subsidiary on the date such calculation is being made will be deemed to have been a Subsidiary at all times during the
applicable four-quarter period, and (ii) any Person that is not a Subsidiary on the date such calculation is being made will be deemed not to have
been a Subsidiary at any time during the applicable four-quarter reference period;
(d) the Consolidated EBITDA attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses
disposed of prior to the date such calculation is being made, will be excluded;
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(e) the Interest Expense attributable to discontinued operations, as determined in accordance with GAAP, and operations or businesses disposed
of prior to the date such calculation is being made, will be excluded, but only to the extent that the obligations giving rise to such Interest Expense
will not be obligations of the Issuers or any of their Subsidiaries following the date such calculation is being made;
(f) interest on Indebtedness that may optionally be determined at an interest rate based upon a factor of a prime or similar rate, a eurocurrency
interbank offered rate, or other rate, shall be deemed to have been based upon the rate actually chosen, or, if none, then based upon such optional
rate as the Issuers may designate; and
(g) except with respect to the 2032 Notes and the 2031 Notes, for any period that includes any period of time occurring prior to the Penn Notes
Issue Date, the Penn Transactions shall be given pro forma effect as if the Penn Transactions had occurred at the beginning of such period.
“Property EBITDA” means, for any period of time with respect to the Penn Master Lease Properties or any other group of related properties or any property
(excluding any properties that are not Income Properties), the sum, with respect to the Penn Master Lease Properties or other group of related properties or
property, of the net income (or net loss) derived from such property for such period (excluding, without duplication, gains (or losses) from dispositions of
depreciable real estate investments, property valuation losses and impairment charges);
(1) plus, without duplication and solely to the extent already deducted (and not added back) in arriving at such net income (or net loss), the sum of the
following amounts for such period:
(a) interest expense (whether paid or accrued and whether or not capitalized);
(b) income tax expense;
(c) depreciation expense;
(d) amortization expense;
(e) extraordinary, non-recurring and unusual items, charges or expenses (including, without limitation, property valuation losses, impairment
charges, fees, costs and expenses relating to the Penn Transactions, prepayment penalties and costs, fees or expenses incurred in connection with
any capital markets offering, debt financing, or amendment thereto, redemption or exchange of indebtedness, lease termination, business
combination, acquisition, disposition, recapitalization or similar transaction (regardless of whether such transaction is completed));
(f) expenses and losses associated with hedging agreements;
(g) expenses and losses resulting from fluctuations in foreign exchange rates;
(h) other non-cash items, charges or expenses reducing net income (or increasing net loss) (other than items that will require cash payments and
for which an accrual or reserve is, or is required by GAAP to be, made in which case, at the election of the Issuers such items may be added back
when accrued and deducted from net income when paid in cash, or given effect (and not added back to net income) when accrued or reserved);
(i) the amount of integration costs deducted (and not added back) in such period in computing the net income (or net loss);
(j) severance, relocation costs, signing costs, retention or completion bonuses, transition costs, curtailments or modifications to pension and post-
retirement employee benefit plans (including any settlement of pension liabilities); and
(k) to the extent not included in net income or, if otherwise excluded from Property EBITDA due to the operation of clause (2)(a) below, the
amount of insurance proceeds received during such period, or after such period and on or prior to the date the calculation is made with respect to
such period, attributable to such property;
(2) minus, without duplication and solely to the extent included in arriving at such net income (or net loss), the sum of the following amounts for such
period:
(a) extraordinary, non-recurring and unusual gains (other than insurance proceeds);
(b) gains attributable to hedging agreements;
(c) non-cash gains resulting from fluctuations in foreign exchange rates; and
(d) other non-cash gains increasing net income (or decreasing net loss) other than accruals in the ordinary course;
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provided that to the extent any amounts referred to in this definition or deducted in calculating net income (or net loss) (including any costs or expenses
included in calculating net income (or net loss)) are required to be paid by the Penn Tenant under the Penn Master Lease or any other Person that is a lessee
or operator of any such property, such amounts will not be subtracted, and will be added back to Property EBITDA for the applicable property or group of
properties.
Property EBITDA will be adjusted, without duplication, to give pro forma effect: (x) in the case of any assets having been placed-in-service or removed
from service since the beginning of the period and on or prior to the date of determination, to include or exclude, as the case may be, any Property EBITDA
earned or eliminated as a result of the placement of such assets in service or removal of such assets from service as if the placement of such assets in
service or removal of such assets from service occurred at the beginning of the period; and (y) in the case of any acquisition or disposition of any asset or
group of assets since the beginning of the period and on or prior to the date of determination, including, without limitation, by merger, or stock or asset
purchase or sale, to include or exclude, as the case may be, any Property EBITDA earned or eliminated as a result of the acquisition or disposition of those
assets as if the acquisition or disposition occurred at the beginning of the period. For purposes of calculating Property EBITDA, all amounts shall be as
determined reasonably by an Issuer, and in accordance with GAAP except to the extent that GAAP is not applicable.
“Qualified Successor Tenant” means a Person that: (a) in the reasonable judgment of an Issuer, has sufficient experience (directly or through one or more of
its Subsidiaries) operating or managing casinos or is owned, controlled or managed by a Person with such experience, to operate properties subject to a
Permitted Replacement Lease and (b) 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.
“Rating Agency” means (a) Fitch, Moody’s or S&P in the case of the 2030 Notes and 2024 Notes and Moody’s or S&P’s in the case of all of the other notes
or (b) if any of Fitch, Moody’s or S&P in the case of the 2030 Notes and 2024 Notes and Moody’s or S&P’s in the case of all of the other notes shall not
make a rating on the notes publicly available, a nationally recognized statistical rating agency or agencies, as the case may be, selected by the Issuers (as
certified by a resolution of the Issuers’ Board of Directors) which shall be substituted for Fitch, Moody’s or S&P, as the case may be.
“Rating Category” means (a) with respect to Fitch or S&P, any of the following categories: BB, B, CCC, CC, C and D (or equivalent successor categories);
(b) with respect to Moody’s, any of the following categories: Ba, B, Caa, Ca, C and D (or equivalent successor categories); and (c) the equivalent of any
such category of Fitch, S&P or Moody’s used by another Rating Agency selected by the Issuers. In determining whether the rating of the notes has
decreased by one or more gradations, gradations within Rating Categories ((i) + and - for S&P and Fitch; (ii) 1, 2 and 3 for Moody’s; and (iii) the
equivalent gradations for another Rating Agency selected by the Issuers) shall be taken into account (e.g., with respect to S&P, a decline in a rating from
BB+ to BB, or from BB- to B+, will constitute a decrease of one gradation).
“Rating Date” means the date which is 90 days prior to the earlier of (a) a Change of Control or (b) public notice of the occurrence of a Change of Control
or of the intention by the Issuers to effect a Change of Control.
“Rating Decline” with respect to a particular series of notes shall be deemed to occur if, within 90 days after public notice of the occurrence of a Change of
Control (which period shall be extended in respect of a Rating Agency so long as the rating of the notes is under publicly announced consideration for
possible downgrade by any such Rating Agency with respect to a Rating Category), the rating of such series of notes by at least two of the three Rating
Agencies in the case of the 2030 Notes and 2024 Notes and each of the Rating Agencies in the case of all other notes shall be decreased by one or more
gradations to or within a Rating Category (including gradations within Rating Categories as well as between Rating Categories) as compared to the rating
of the notes on the Rating Date.
“Redevelopment Property” means any real property owned by an Issuer or its Subsidiaries that operates or is intended to operate as an Income Property (a)
(i) that has been acquired by an Issuer or any of its Subsidiaries 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 (x) that an Issuer or any of its Subsidiaries intends to renovate or rehabilitate at an aggregate anticipated cost in
excess of (y) 10% of the Capitalized Value of such real property immediately prior to such renovation or rehabilitation and such renovation or rehabilitation
is expected to temporarily reduce the Property EBITDA attributable to such property by at least 30% as compared to the immediately preceding
comparable prior period and or (ii) with respect to which an Issuer or a Subsidiary thereof has entered into a binding construction contract or construction
has commenced, (b) that does not qualify as a “Development Property” and (c) that an Issuer so desires to classify as a “Redevelopment Property” for
purposes of the notes.
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“Registration Rights Agreement” means (i) the Registration Rights Agreement related to the 2023 notes, dated as of October 30, 2013, which was between
the Issuers and Merrill Lynch, Pierce, Fenner & Smith Incorporated, and J.P. Morgan Securities LLC, as representative of the initial purchasers, as amended
or supplemented, and (ii) any other registration rights agreement entered into in connection with the issuance after the applicable date of issuance of the
2023 Notes of additional 2023 Notes or additional debt securities under the indenture in a private offering by the Issuers.
“Secured Debt” means, as of any date of determination, the portion of Total Debt as of such date that is secured by a Lien on property or assets of the
Issuers or any of their Subsidiaries.
“Significant Acquisition” means an acquisition in which the aggregate consideration (whether in the form of cash, securities, goodwill, or otherwise) with
respect to such acquisition is not less than five percent (5%) of Total Asset Value immediately prior to such acquisition.
“Significant Subsidiary” means any Subsidiary of an Issuer having (together with its Subsidiaries) assets that constitute five percent (5%) or more of Total
Asset Value as of the end any of the most recently completed fiscal year of the Issuers for which Consolidated Financial Statements have been prepared
prior to the date of determination.
“Statistical Release” means the statistical release designated “H.15” or any successor publication which is published weekly by the Federal Reserve System
(or companion online data resource published by the Federal Reserve System) and which establishes yields on actively traded United States government
securities adjusted to constant maturities, or, if such statistical release is not published at the time of any determination under the indenture, then such other
reasonably comparable index designated by us.
“Subsidiary” means, as to any Person, (i) any corporation more than 50% of whose stock of any class or classes having by the terms thereof ordinary voting
power to elect a majority of the directors of such corporation (irrespective of whether or not at the time stock of any class or classes of such corporation
shall have or might have voting power by reason of the happening of any contingency) is at the time owned by such Person and/or one or more Subsidiaries
of such Person and (ii) any partnership, limited liability company, association, joint venture or other entity in which such Person and/or one or more
Subsidiaries of such Person has more than a 50% equity interest at the time. Unless otherwise qualified, all references to a “Subsidiary” or to “Subsidiaries”
shall refer to a Subsidiary or Subsidiaries of an Issuer, and in the case of each of clauses (i) and (ii) which is required to be consolidated with such Person in
accordance with GAAP.
“Total Asset Value” means, as of any date, the sum of the following without duplication: (a) the sum of the Asset Values for all assets constituting Income
Properties, Development Properties, Redevelopment Properties or undeveloped land owned by the Issuers or any of their Subsidiaries at such
date, plus (b) an amount (but not less than zero) equal to all unrestricted cash and cash equivalents on hand of the Issuers and their Subsidiaries (including
the proceeds of the Indebtedness to be incurred), plus (c) earnest money deposits associated with potential acquisitions as of such date, plus (d) the book
value (determined in accordance with GAAP) (but determined without giving effect to any depreciation or amortization) of all other investments held by
the Issuers and their Subsidiaries at such date (exclusive of accounts receivable and non-real estate intangible assets in the case of the 2032 Notes and the
2031 Notes, accounts receivable and goodwill and other intangible assets in the case of the 2030 Notes and 2024 Notes and goodwill and other intangible
assets in the case of all other notes). Total Asset Value shall be adjusted in the case of assets owned by Subsidiaries of the Issuers which are not wholly
owned Subsidiaries of the Issuers to reflect the Issuers’ Ownership Share therein.
“Total Debt” means, as of any date of determination, the aggregate principal amount of outstanding Indebtedness of the Issuers and their Subsidiaries as of
such date; provided that (a) Total Debt shall not include Indebtedness in respect of letters of credit, except to the extent of unreimbursed amounts
thereunder, and (b) the amount of Total Debt, in the case of Indebtedness of a Subsidiary of the Issuers that is not a wholly owned Subsidiary of the Issuers,
shall be reduced to reflect the Issuers’ proportionate interest therein.
“Total Unencumbered Asset Value” means, as of any date of determination, the Total Asset Value for all assets owned by the Issuers or one of their
Subsidiaries at such date that are not subject to any Lien which secures Indebtedness of the Issuers and their Subsidiaries; provided, however, that in the
case of the 2032 Notes, 2031 Notes, 2030 Notes and 2024 Notes all investments by the Issuers and their Subsidiaries in unconsolidated joint ventures,
unconsolidated limited partnerships, unconsolidated limited liability companies and other unconsolidated entities shall be excluded from Total
Unencumbered Asset Value to the extent such investments would have otherwise been included.
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“Unconsolidated Affiliate” means, with respect to any Person, any other Person in whom such Person holds an Investment, which Investment is accounted
for in the financial statements of such Person on an equity basis of accounting and whose financial results would not be consolidated under GAAP with the
financial results of such Person on the Consolidated Financial Statements of such Person.
“Unsecured Debt” means, as of any date of determination, that portion of Total Debt as of that date that is not Secured Debt.
“Voting Stock” of any Person as of any date means the Capital Stock of such Person that is at the time entitled to vote in the election of the Board of
Directors of such Person.
Events of Default
The following are “events of default” under the indenture with respect to debt securities of a particular series issued under the indenture, including the
notes:
(1) default for 30 days in the payment when due of interest on the debt securities of a particular series issued under the indenture, including the notes;
(2) default in payment when due of the principal of or premium, if any, on the debt securities of a particular series issued under the indenture, including
the notes;
(3) failure by the Issuers or any of their Subsidiaries for 60 days after receipt of notice from the trustee or holders of at least 25% in principal amount of
the notes then outstanding to comply with any of the covenants or agreements in the indenture (other than a covenant or agreement included in the
indenture for the benefit of one or more series of debt securities other than the notes) or the notes;
(4) certain specified events under bankruptcy, insolvency or other similar laws with respect to the Issuers or any of their Significant Subsidiaries;
(5) a default under any mortgage, indenture or instrument under which there may be issued or by which there may be secured or evidenced any of our
recourse Indebtedness (or the payment of which we guarantee), whether such Indebtedness or guarantee now exists or is created after the date of the
indenture, if that default: (i) is caused by a failure to pay principal of such Indebtedness at final maturity (a “payment default”); or (ii) results in the
acceleration of such Indebtedness prior to its express maturity (which, in the case of the 2032 Notes and the 2031 Notes, such Indebtedness has not been
Discharged or, in the case of any of the notes, acceleration has not been rescinded, annulled or cured within 20 business days after receipt by us of notice
from the trustee or holders of at least 25% in principal amount of the notes then outstanding specifying such default), and, in each case, the due and payable
principal amount of any such Indebtedness, together with the due and payable principal amount of any other such Indebtedness under which there has been
a payment default or the maturity of which has been so accelerated, aggregates $100.0 million or more; and
(6) except with respect to the 2032 Notes and the 2031 Notes, other than in connection with any transaction not prohibited by “-Certain Covenants-Penn
Master Lease,” the Penn Master Lease shall have terminated or the Penn Master Lease Guaranty shall have terminated (other than in accordance with the
terms of the Penn Master Lease); provided that such termination shall not constitute an event of default if within 90 days after such termination the
Operating Partnership has entered into one or more Permitted Replacement Leases (or in the case of the Penn Master Lease Guaranty, a replacement
guaranty is entered into in accordance with the Penn Master Lease).
In the case of an event of default arising under clause (4) of the immediately preceding paragraph 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 and is continuing, the trustee or the holders of at
least 25% in principal amount of then outstanding notes (or then outstanding debt securities of a particular series in case of an event of default specific to
such series) may declare all the debt securities outstanding under the indenture (or all of the notes of such series, as applicable) to be due and payable
immediately.
Holders of the notes may not enforce the indenture or the notes except as provided in the indenture. Subject to certain limitations, holders of a majority in
principal amount of then outstanding notes may direct the trustee, in writing, in its exercise of any trust or power. The trustee may withhold from holders of
the notes notice of any continuing default or event of default if it determines that withholding notice is in their interest, except a default or event of default
relating to the payment of principal or interest.
The holders of a majority in aggregate principal amount of the notes then outstanding by written notice to the trustee may on behalf of the holders of all of
the notes waive any existing default or event of default with respect to the notes and its consequences under the indenture (or in the case of an event of
default specific to a series of debt securities outstanding under
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the indenture, including the notes, holders of a majority in aggregate principal amount of the debt securities of such series then outstanding by written
notice to the trustee may on behalf of the holders of all of such series waive any existing default or event of default with respect to the debt securities of
such series and its consequences under the indenture), in each case, except a continuing default or event of default in the payment of interest on, or the
principal of, such debt securities, including the notes; provided that the holders of a majority in aggregate principal amount of such debt securities (or of the
debt securities of such series, respectively) then outstanding may rescind an acceleration of the debt securities (or the debt securities of such series) and
waive the payment default that resulted from such acceleration.
The Issuers are required to deliver to the trustee annually a statement regarding compliance with the indenture. Upon becoming aware of any default or
event of default, the Issuers are required to deliver to the trustee, a statement specifying such default or event of default.
Notwithstanding clause (3) of the first paragraph above or any other provision of the indenture, except as provided in the final sentence of this paragraph,
the sole remedy for any failure to comply by the Issuers with the covenant described under the caption “—Certain Covenants-Reports” shall be the
payment of liquidated damages as described in the following sentence, such failure to comply shall not constitute an event of default, and holders of the
notes shall not have any right under the indenture or the notes to accelerate the maturity of the notes as a result of any such failure to comply. If a failure to
comply by the Issuers with the covenant described under the caption “—Certain Covenants-Reports” continues for 60 days after the Issuers receives notice
of such failure to comply in accordance with clause (3) of the first paragraph above (such notice, the “Reports Default Notice”), and is continuing on the
60th day following the Issuers’ receipt of the Reports Default Notice, the Issuers will pay liquidated damages to all holders of notes at a rate per annum
equal to 0.25% of the principal amount of the notes from the 60th day following the Issuers’ receipt of the Reports Default Notice to but not including the
earlier of (x) the 121st day following the Issuers’ receipt of the Reports Default Notice and (y) the date on which the failure to comply by the Issuers with
the covenant described under the caption “—Certain Covenants-Reports” shall have been cured or waived. On the earlier of the date specified in the
immediately preceding clauses (x) and (y), such liquidated damages will cease to accrue. If the failure to comply by the Issuers with the covenant described
under the caption “—Certain Covenants-Reports” shall not have been cured or waived on or before the 121st day following the Issuers’ receipt of the
Reports Default Notice, then the failure to comply by the Issuers with the covenant described under the caption “—Certain Covenants-Reports” shall on
such 121st day constitute an event of default. A failure to comply with the covenant described under the caption “—Certain Covenants-Reports”
automatically shall cease to be continuing and shall be deemed cured at such time as the Issuers (or the Guarantor or other parent guarantor of the Issuers,
as applicable) furnishes to the trustee the applicable information or report (it being understood that the availability of such information or report on the
SEC’s EDGAR service (or any successor thereto) shall be deemed to satisfy the Issuers’ obligation to furnish such information or report to the
trustee); provided, however, that the trustee shall have no obligation whatsoever to determine whether or not such information, documents or reports have
been filed pursuant to the “EDGAR” system (or its successor).
Amendment, Supplement and Waiver
Except as provided in the next three succeeding paragraphs, the notes and the indenture may be amended or supplemented with the consent of the holders
of a majority in principal amount of the notes of a series then outstanding (including consents obtained in connection with a purchase of, or tender offer or
exchange offer for, notes), and any existing default or compliance with the notes of a series or any provision of the indenture as it relates to the notes of a
series may be waived with the consent of the holders of a majority in principal amount of the notes of such series then outstanding (including consents
obtained in connection with a purchase of, or tender offer or exchange offer for, notes).
Without the consent of each holder of notes affected, an amendment or waiver may not (with respect to any notes held by a non-consenting holder):
(1) reduce the principal amount of notes whose holders must consent to an amendment, supplement or waiver;
(2) reduce the principal of or change the fixed maturity of any note or alter the provisions with respect to the redemption of the notes;
(3) reduce the rate of or change the time for payment of interest on any note;
(4) waive a default or event of default in the payment of principal of or interest or premium on the notes (except a rescission of acceleration of the notes
by the holders of a majority in aggregate principal amount of the notes and a waiver of the payment default that resulted from such acceleration);
(5) make any note payable in money other than that stated in the notes;
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(6) make any change in the provisions of the indenture relating to waivers of past defaults or the rights of holders of notes to receive payments of
principal of or interest or premium on the notes;
(7) waive a redemption payment with respect to any note; or
(8) make any change in the preceding amendment and waiver provisions.
Notwithstanding the preceding, without the consent of any holder of notes, the Issuers and the trustee may amend or supplement the indenture or the notes:
(1) to cure any ambiguity, defect, mistake or inconsistency;
(2) to provide for uncertificated notes in addition to or in place of certificated notes;
(3) to provide for the assumption of the Issuers’ obligations to holders of notes in the case of a merger or consolidation or sale of all or substantially all of
the Issuers’ assets;
(4) to comply with the rules of any applicable securities depository;
(5) to comply with applicable Gaming Laws, to the extent that such amendment or supplement is not materially adverse to the holders of notes;
(6) to provide for the issuance of additional notes or additional debt securities of any series in accordance with the limitations set forth in the indenture;
(7) to make any change that would provide any additional rights or benefits to the holders of notes (including to provide for any guarantees of the notes or
any collateral securing the notes or any guarantees of the notes) or that does not materially adversely affect the legal rights under the indenture of any such
holder;
(8) to comply with requirements of the SEC in order to effect or maintain the qualification of the indenture under the TIA; or
(9) to conform the text of the indenture or the notes to any provision of the Description of Notes contained in the 2013 Offering Memorandum or this
prospectus supplement as set forth in an officer’s certificate.
Legal Defeasance and Covenant Defeasance
The Issuers may, at their option and at any time, elect to have all of their obligations discharged with respect to any series of the outstanding notes (“Legal
Defeasance”) except for:
(1) the rights of holders of outstanding notes to receive payments in respect of the principal of or interest or premium on such notes when such payments
are due from the trust referred to below;
(2) the Issuers’ obligations with respect to the notes concerning issuing temporary notes, the replacement of mutilated, destroyed, lost or stolen notes and
the maintenance of an office or agency for payment and money for security payments held in trust;
(3) the rights, powers, trusts, duties and immunities of the trustee, and the Issuers’ obligations in connection therewith; and
(4) the Legal Defeasance provisions of the indenture.
In addition, the Issuers may, at their option and at any time, elect to have the obligations of the Issuers released with respect to certain covenants that are
described in the indenture (“Covenant Defeasance”) and thereafter any omission to comply with those covenants will not constitute a default or event of
default with respect to the notes. In the event Covenant Defeasance occurs, certain events (not including the events described in clauses (1), (2), or
(4) under the caption “Events of Default” above pertaining to the Issuers) described under the caption “Events of Default” above will no longer constitute
an event of default with respect to the notes. The Issuers may exercise Legal Defeasance regardless of whether they previously have exercised Covenant
Defeasance.
In order to exercise either Legal Defeasance or Covenant Defeasance:
(1) the Issuers must irrevocably deposit with the trustee, in trust, for the benefit of the holders of the series of notes to be defeased, cash in U.S.
dollars, non-callable government securities, or a combination of cash in U.S. dollars and non-callable government securities, in amounts as will be
sufficient, in the opinion or based on the report of a nationally recognized firm of independent public accountants, investment bank or appraisal firm, to pay
the principal of, premium, if any, on and accrued and unpaid interest on the outstanding notes to be defeased on the stated maturity or on a redemption date,
as the case may be, and the Issuers must specify whether the notes are being defeased to maturity or to a particular redemption
27
date; provided that, with respect to any redemption pursuant to “—Redemption-Optional Redemption,” the amount deposited shall be sufficient for
purposes of the indenture to the extent that an amount is so deposited with the trustee equal to the redemption amount computed using the Treasury Rate (or
the Adjusted Treasury Rate in the case of the 2032 Notes and the 2031 Notes) as of the third business date preceding the date of such deposit with the
trustee (or the Deposit Date in the case of the 2032 Notes and the 2031 Notes);
(2) in the case of Legal Defeasance, the Issuers must have delivered to the trustee an opinion of counsel reasonably acceptable to the trustee confirming
that (a) the Issuers have received from, or there has been published by, the Internal Revenue Service a ruling or (b) since the date of the indenture, there has
been a change in the applicable United States federal income tax law, in either case to the effect that the holders of the outstanding notes will not recognize
income, gain or loss for United States federal income tax purposes as a result of such Legal Defeasance and will be subject to United States federal income
tax on the same amounts, in the same manner and at the same times as would have been the case if such Legal Defeasance had not occurred;
(3) in the case of Covenant Defeasance, the Issuers must have delivered to the trustee an opinion of counsel reasonably acceptable to the trustee
confirming that the holders of the outstanding notes will not recognize income, gain or loss for United States federal income tax purposes as a result of such
Covenant Defeasance and will be subject to federal income tax on the same amounts, in the same manner and at the same times as would have been the
case if such Covenant Defeasance had not occurred;
(4) no default or event of default has occurred and is continuing on the date of such deposit (other than a default or event of default resulting from
transactions occurring contemporaneously with the borrowing of funds, or the borrowing of funds, to be applied to such deposit or other Indebtedness
which is being Discharged and, in each case, the granting of Liens in connection therewith);
(5) such Legal Defeasance or Covenant Defeasance will not result in a breach or violation of, or constitute a default under any material agreement or
instrument (other than the indenture or any agreement or instrument governing any other Indebtedness which is being Discharged) to which the Issuers are
a party or by which the Issuers are bound;
(6) the Issuers must deliver to the trustee an officer’s certificate stating that the deposit was not made by the Issuers with the intent of preferring the
holders of notes over the other creditors of the Issuers or with the intent of defeating, hindering, delaying or defrauding creditors of the Issuers or others;
and
(7) the Issuers must deliver to the trustee an officer’s certificate and an opinion of counsel, each stating that all conditions precedent relating to the Legal
Defeasance or the Covenant Defeasance have been complied with.
The Legal Defeasance or Covenant Defeasance will be effective on the day on which all the applicable conditions above have been satisfied. Upon
compliance with the foregoing, the trustee shall execute proper instrument(s) acknowledging such Legal Defeasance or Covenant Defeasance.
Satisfaction and Discharge
The indenture will be discharged and will cease to be of further effect as to all notes issued thereunder, when:
(1) either:
(a) all notes that have been authenticated, except lost, stolen or destroyed notes that have been replaced or paid and notes for whose payment
money has been deposited in trust and, if provided for in the indenture, thereafter repaid to the Issuers, have been delivered to the trustee for
cancellation; or
(b) all notes that have not been delivered to the trustee for cancellation have become due and payable by reason of the mailing of a notice of
redemption or otherwise or will become due and payable within one year and the Issuers have irrevocably deposited or caused to be deposited
with the trustee as trust funds in trust solely for the benefit of the holders, cash in U.S. dollars, non-callable government securities, or a
combination of cash in U.S. dollars and non-callable government securities, in amounts as will be sufficient, without consideration of any
reinvestment of interest, to pay and discharge the entire indebtedness on the notes not delivered to the trustee for cancellation for principal,
premium, if any, and accrued and unpaid interest to, but not including, the date of maturity or redemption; provided that, in the case of the 2032
Notes, 2031 Notes, 2030 Notes and 2024 Notes, in the event that any portion of the trust funds so deposited consist of non-callable government
securities, the sufficiency of such trust funds shall be determined based upon the opinion or the report of a nationally recognized firm of
independent public accountants, investment bank or appraisal firm; provided further that, with respect to any redemption pursuant to “-
Redemption-Optional Redemption,” the amount deposited shall be sufficient for purposes of the indenture to the extent that an amount is so
deposited with the trustee equal to the redemption amount computed using the Treasury Rate (or the Adjusted Treasury Rate in the case of the
2032 Notes and the 2031 Notes) as of the third business date preceding
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the date of such deposit with the trustee (or the date of such deposit with the trustee, including any such deposit in connection with a Legal or
Covenant Defeasance described above under "—Legal Defeasance and Covenant Defeasance" in the case of the 2032 Notes and the 2031 Notes)
(the date of any such deposit, a “Deposit Date”);
(2) the Issuers have paid or caused to be paid all other sums then payable by it under the indenture; and
(3) the Issuers have delivered irrevocable written instructions to the trustee under the indenture to apply the deposited money toward the payment of the
notes at maturity or the redemption date, as the case may be.
In addition, the Issuers must deliver an officer’s certificate and an opinion of counsel to the trustee stating that all conditions precedent to satisfaction and
discharge have been satisfied.
Upon compliance with the foregoing, the trustee shall execute proper instrument(s) acknowledging the satisfaction and discharge of all of the Issuers’
obligations under the notes and the indenture.
No Personal Liability of Directors, Officers, Employees and Stockholders
No director, officer, employee, incorporator or direct or indirect partner, member or stockholder, past, present or future, of the Issuers, the Guarantor or any
successor entity, as such, will have any liability for any obligations of the Issuers or the Guarantor under the notes or the indenture or in the case of the
2023 Notes, the Registration Rights Agreement, 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.
Forms and Denomination
The notes are issued as permanent global securities in the name of a nominee of DTC and in the case of the 2023 Notes, are available only in book-entry
form except in certain limited circumstances. The notes are issued in fully registered form without coupons and are available for purchase only in
denominations of $2,000 and in integral multiples of $1,000 in excess thereof.
Governing Law
The indenture and the notes will be governed by and construed in accordance with the laws of the State of New York.
Concerning the Trustee
If the trustee becomes a creditor of the Issuers or the Guarantor, the indenture limits its right to obtain payment of claims in certain cases, or to realize on
certain property received in respect of any such claim as security or otherwise. The trustee will be permitted to engage in other transactions; however, if it
acquires any conflicting interest it must eliminate such conflict within 90 days, apply to the SEC for permission to continue or resign.
The holders of a majority in principal amount of then outstanding applicable series of notes will have the right to direct the time, method and place of
conducting any proceeding for exercising any remedy available to the trustee with respect to such series of notes, subject to certain exceptions. The
indenture provides that in case an event of default occurs and is continuing, the trustee will be required, in the exercise of its power, to use the degree of
care of a prudent person in the conduct of such person’s own affairs. Subject to such provisions, the trustee will be under no obligation to exercise any of its
rights or powers under the indenture at the request of any holder of notes, unless such holder has offered to the trustee security and indemnity satisfactory
to it against any loss, liability or expense.
In the case the of 2032 Notes, 2031 Notes, 2030 Notes and 2024 Notes, the trustee shall be entitled to make a deduction or withholding from any payment
which it makes under the indenture for or on account of any present or future taxes, duties or charges if and to the extent so required by any applicable law
and any current or future regulations or agreements thereunder or official interpretations thereof or any law implementing an intergovernmental approach
thereto or by virtue of the relevant holder failing to satisfy any certification or other requirements in respect of the notes, in which event the trustee shall
make such payment after such withholding or deduction has been made and shall account to the relevant authorities for the amount so withheld or deducted
and shall have no obligation to gross up any payment hereunder or pay any additional amount as a result of such withholding tax. In connection with any
proposed exchange of a certificated note for a global note interest, the Issuers or DTC shall be required to use commercially reasonable efforts to provide or
cause to be provided to the trustee all information reasonably requested by the trustee that is necessary to allow the trustee to comply with any applicable
tax reporting obligations, including, in the case of the 2032 Notes, 2031 Notes, 2030 Notes and 2024 Notes, without limitation, any cost basis
29
reporting obligations under Section 6045 of the Code. The trustee shall be entitled to rely on the information provided to it and shall have no responsibility
to verify or ensure the accuracy of such information.
Certain Provisions of Pennsylvania Law and GLPI’s Articles of Incorporation and Bylaws and Other Governance Documents
Size of Board and Vacancies; Removal of Directors
Pursuant to GLPI’s Articles of Incorporation, each member of GLPI’s board of directors is elected until the next annual meeting of shareholders and until
his or her successor is elected or until his or her earlier death, resignation or removal. At any meeting of shareholders for the uncontested election of
directors at which a quorum is present, the election will be determined by a majority of the votes cast by the shareholders entitled to vote in the election.
The Bylaws provide that the number of directors on GLPI’s board of directors will be fixed exclusively by the board of directors. Subject to the rights of
holders of any stock having preference over the common stock to elect additional directors, newly created directorships resulting from any increase in the
number of directors and any vacancies in the board of directors resulting from death, resignation, retirement, disqualification, removal from office or other
cause will be filled by the majority vote of the remaining directors in office, even if less than a quorum is present.
Subject to the rights of any stock having preference over the common stock to elect directors, the Bylaws provide that a director may be removed only for
cause (as defined in the Bylaws) by the affirmative vote of: (i) a majority of the entire GLPI board of directors (not including the director whose removal is
being considered); or (ii) 75% of the votes cast by the holders of shares entitled to vote generally in the election of directors. In addition, under
Section 1726(c) of the Pennsylvania Business Corporation Law, or the PBCL, a court may remove a director upon application in a derivative suit in cases
of fraudulent or dishonest acts, gross abuse of authority or discretion, or for any other proper cause. Section 1726(a)(4) of the PBCL also provides that the
board of directors may be removed at any time with or without cause by the unanimous vote or written consents of the shareholders entitled to vote thereon.
Pennsylvania State Takeover Statutes
Section 2538 of Subchapter 25D of the PBCL requires certain transactions with an “interested shareholder” to be approved by a majority of disinterested
shareholders. “Interested shareholder” is defined broadly to include any shareholder who is a party to the transaction or who is treated differently than other
shareholders and affiliates of the corporation.
Subchapter 25E of the PBCL requires a person or group of persons acting in concert which acquires 20% or more of the voting shares of the corporation to
offer to purchase the shares of any other shareholder at “fair value.” “Fair value” means the value not less than the highest price paid by the controlling
person or group during the 90-day period prior to the control transaction, plus a control premium. Among other exceptions, shares acquired directly from
the corporation in a transaction exempt from the registration requirements of the Securities Act of 1933, are not counted towards the determination of
whether the 20% share ownership threshold has been met for purposes of Subchapter 25E.
Subchapter 25F of the PBCL generally establishes a 5-year moratorium on a “business combination” with an “interested shareholder.” “Interested
shareholder” is defined generally to be any beneficial owner of 20% or more of the corporation’s voting stock. “Business combination” is defined broadly
to include mergers, consolidations, asset sales and certain self-dealing transactions. Certain restrictions apply to a business combination following the 5-
year period. Among other exceptions, Subchapter 25F will be rendered inapplicable if the board of directors approves the proposed business combination,
or approves the interested shareholder’s acquisition of 20% of the voting shares, in either case prior to the date on which the shareholder first becomes an
interested shareholder.
Subchapter 25G of the PBCL provides that “control shares” lose voting rights unless such rights are restored by the affirmative vote of a majority of (i) the
disinterested shares (generally, shares held by persons other than the acquiror, executive officers of the corporation and certain employee stock plans) and
(ii) the outstanding voting shares of the corporation. “Control shares” are defined as shares which, upon acquisition, will result in a person or group
acquiring for the first time voting control over (a) 20%, (b) 33 1/3% or (c) 50% or more of the outstanding shares, together with shares acquired within 180
days of attaining the applicable threshold and shares purchased with the intention of attaining such threshold. A corporation may redeem control shares if
the acquiring person does not request restoration of voting rights as permitted by Subchapter 25G. Among other
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exceptions, Subchapter 25G does not apply to a merger, consolidation or a share exchange if the corporation is a party to the transaction agreement.
Subchapter 25H of the PBCL provides that if any person or group publicly discloses that the person or group may acquire control of the corporation, or a
person or group acquires, or publicly discloses an offer or intent to acquire, 20% or more of the voting power of the corporation and, in either case, sells
shares in the following 18 months, then the profits from such sale must be disgorged to the corporation if the securities that were sold were acquired during
the 18-month period or within the preceding 24 months.
If shareholders approve a control share acquisition under Subchapter 25G, the corporation is also subject to Subchapters 25I and 25J of the PBCL.
Subchapter 25I provides for a minimum severance payment to certain employees terminated within two years of the approval. Subchapter 25J prohibits the
abrogation of certain labor contracts prior to their stated date of expiration.
Amendments to GLPI’s Articles of Incorporation and Bylaws and Approval of Extraordinary Actions
Pennsylvania law and the Articles of Incorporation generally provide that GLPI can amend its Articles of Incorporation, merge, consolidate, sell all or
substantially all of our assets, engage in a statutory share exchange or dissolve if the action has first been approved by the board of directors and then by the
affirmative vote of a majority of the votes cast by all shareholders entitled to vote on the matter. The Articles of Incorporation also provide that the
amendment or repeal of any Articles of Incorporation provision concerning the indemnification or limitation of liability of GLPI’s directors will require the
affirmative vote of at least 75% of the voting power of all of its outstanding capital stock entitled to vote generally in the election of directors, voting
together as a single class. Pennsylvania law provides that GLPI’s shareholders are not entitled by statute to propose amendments to the Articles of
Incorporation or to call special meetings of shareholders.
GLPI’s board of directors is authorized to adopt, amend or repeal any provision of the bylaws without shareholder approval. Except as otherwise required
by law, any provision of the Bylaws may only be adopted, amended or repealed by the shareholders (i) upon receiving at least 75% of the votes cast by the
holders of shares entitled to vote thereon or (ii) in the event that the amendment has been proposed by a majority of the board of directors, upon receiving a
majority of the votes cast by the holders of shares entitled to vote thereon.
Shareholder Meetings
Under the PBCL, shareholders will be not entitled to call special meetings of shareholders. Only the chairman of the board of directors or a majority of the
directors then in office may call such meetings pursuant to the Bylaws.
Shareholder Action by Written Consent
Under the PBCL, any action required to be taken or which may be taken at any annual or special meeting of the shareholders may be taken without a
meeting if, and only if, prior to the taking of such action, all shareholders entitled to vote thereon consent in writing to such action being taken.
Requirements for Advance Notification of Shareholder Nominations and Proposals
The Bylaws contain advance notice procedures with respect to shareholder proposals and recommendations of candidates for election as directors other
than nominations made by or at the direction of the board of directors or a committee of the board of directors. In particular, shareholders must notify the
corporate secretary in writing prior to the meeting at which the matters are to be acted upon or directors are to be elected. The notice must contain the
information specified in the Bylaws. To be timely, the notice must be received at GLPI’s principal executive office not less than 120 nor more than 150
days prior to the anniversary date of the immediately preceding annual meeting of shareholders. In order to be eligible to present a shareholder proposal or
recommend a candidate for nomination for election as a director at a shareholders meeting, a shareholder must have owned beneficially at least 1% of the
outstanding GLPI common stock for a continuous period of not less than 12 months. In addition, shareholders will not be permitted to nominate directly
candidates for election to the board of directors, but will instead be permitted to recommend potential nominees to the compensation and governance
committee.
Effect of Certain Provisions of Pennsylvania Law and of the Articles of Incorporation and Bylaws
The restrictions on ownership and transfer of GLPI stock will prohibit any person from acquiring more than 7% of its outstanding common stock (without
prior approval of GLPI’s board of directors). The power of GLPI’s board of directors to issue authorized but unissued shares of our common stock and
preferred stock without shareholder approval also could have the
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effect of delaying, deferring or preventing a change in control or other transaction. These additional shares may be used for a variety of corporate purposes,
including future public offerings to raise additional capital, corporate acquisitions and employee benefit plans. The existence of authorized but unissued
shares of common stock and preferred stock could make it more difficult, or discourage an attempt, to obtain control of us by means of a proxy contest,
tender offer, merger or otherwise.
These provisions, along with other provisions of the PBCL and the Articles of Incorporation and Bylaws discussed above, including provisions relating to
the removal of directors and the filling of vacancies, the advance notice and special meeting provisions, alone or in combination, are designed to protect
GLPI’s shareholders from coercive or otherwise unfair takeover tactics by requiring potential acquirors to negotiate with GLPI’s board of directors and by
providing GLPI’s board of directors with more time to assess any acquisition proposal.
Shareholders Rights Plan
While the PBCL authorizes a corporation to adopt a shareholder rights plan, GLPI does not have a shareholder rights plan currently in effect.
Limitation on Liability of Directors and Officers
The PBCL permits a corporation to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed
action or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation), by reason of the fact
that he is or was a representative of the corporation, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually
and reasonably incurred by him in connection with the action or proceeding if he acted in good faith and in a manner he reasonably believed to be in, or not
opposed to, the best interests of the corporation, and with respect to any criminal proceeding, had no reasonable cause to believe his conduct was unlawful.
In an action by or in the right of the corporation, indemnification will not be made in respect of any claim, issue, or matter as to which the person has been
adjudged to be liable to the corporation.
Unless ordered by a court, the determination of whether indemnification is proper in a specific case will be determined by (1) the board of directors by a
majority vote of a quorum consisting of directors who were not parties to the action or proceeding; (2) if such a quorum is not obtainable or if obtainable
and a majority vote of a quorum of disinterested directors so directs, by independent legal counsel in a written opinion; or (3) by the shareholders.
To the extent that a representative of a business corporation has been successful on the merits or otherwise in defense of a third-party action, derivative
action, or corporate action, he must be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by him in connection
therewith.
Pennsylvania law permits a corporation to purchase and maintain insurance for a director or officer against any liability asserted against him, and incurred
in his capacity as a director or officer or arising out of his position, whether or not the corporation would have the power to indemnify him against such
liability under Pennsylvania law.
The Articles of Incorporation and Bylaws provide that a director shall, to the maximum extent permitted by Pennsylvania law, have no personal liability or
monetary damages for any action taken, or any failure to take any action as a director. The Articles of Incorporation and Bylaws also provide for
indemnification for current and former directors, officers, employees, or agents serving at the request of the corporation to the fullest extent permitted by
Pennsylvania law. The Articles of Incorporation and Bylaws also permit the advancement of expenses.
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NINTH AMENDMENT TO MASTER LEASE
THIS NINTH AMENDMENT TO MASTER LEASE (this “Amendment”) is being entered into on this 14 day of
January, 2022 (the “Effective Date”), by and between GLP Capital, L.P. (together with its permitted successors and assigns,
“Landlord”) and Penn Tenant, LLC (together with its permitted successors and assigns, “Tenant”), and shall amend that certain
Master Lease, dated November 1, 2013, as amended by that certain First Amendment to Master Lease, dated March 5, 2014, that
certain Second Amendment to Master Lease and First Amendment to Access Agreement, dated April 18, 2014, that certain Third
Amendment to Master Lease, dated September 20, 2016, and that certain Fourth Amendment to Master Lease, dated May 1,
2017, that certain Fifth Amendment to Master Lease, dated June 19, 2018, that certain Sixth Amendment to Master Lease, dated
August 8, 2018, that certain Seventh Amendment to Master Lease, dated October 31, 2018, and that certain Eighth Amendment
to Master Lease, dated November 20, 2018 (collectively with the foregoing, the “Master Lease”), by and among Landlord and
Tenant, pursuant to which Tenant leases certain Leased Property, as further defined in the Master Lease. Capitalized terms used
herein and not otherwise defined herein shall have the meaning ascribed to them in the Master Lease.
th
BACKGROUND:
WHEREAS, Landlord and Tenant each desire to amend the Master Lease as more fully described herein.
NOW, THEREFORE, in consideration of the provisions set forth in the Master Lease as amended by this Amendment,
including, but not limited to, the mutual representations, warranties, covenants and agreements contained therein and herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby respectively acknowledged, and
subject to the terms and conditions thereof and hereof, the parties, intending to be legally bound, hereby agree that the Master
Lease shall be amended as follows:
AMENDMENT TO ARTICLE II OF THE MASTER LEASE
Article I
1.1
following language:
The definition of Net Revenue of the Master Lease is hereby amended and restated in its entirety with the
“Net Revenue: The sum of, without duplication, (i) the amount received by Tenant (and its Subsidiaries and its
subtenants) from patrons at any Facility for gaming, less refunds and free promotional play provided to the customers and
invitees of Tenant (and its Subsidiaries and subtenants) pursuant to a rewards, marketing, and/or frequent users program,
and less amounts returned to patrons through winnings at any Facility (the amounts in this clause (i), “Gaming
Revenues”); and (ii) the gross receipts of Tenant (and its Subsidiaries and subtenants) for all goods and merchandise sold,
the charges for all services performed, or any other revenues generated by Tenant (and its Subsidiaries and subtenants) in,
at, or from the Leased Property for cash, credit, or otherwise (without reserve or deduction for uncollected amounts), but
excluding any Gaming Revenues (the amounts in this clause (ii), “Retail Sales”); less (iii) the retail value of
accommodations, food and beverage, and other services furnished without charge to guests of Tenant (and its Subsidiaries
and subtenants) at any Facility (the amounts in this clause (iii), “Promotional Allowance”). For the avoidance of doubt,
gaming taxes and casino operating expenses (such as salaries, income taxes, employment taxes, supplies, equipment, cost
of goods and inventory, rent, office overhead, marketing and advertising and other general administrative costs) will not
be deducted in arriving at Net Revenue. Net Revenue will be calculated on an accrual basis for these purposes, as required
under
ACTIVE/103647909.7
W/3796224v21
GAAP. For the absence of doubt, if Gaming Revenues, Retail Sales or Promotional Allowances of a Subsidiary or
subtenant, as applicable, are taken into account for purposes of calculating Net Revenue, any rent received by Tenant from
such Subsidiary or subtenant, as applicable, pursuant to any sublease with such Subsidiary or subtenant, as applicable,
shall not also be taken into account for purposes of calculating Net Revenues. Notwithstanding the foregoing, with respect
to any Specified Sublease, Net Revenue shall not include Gaming Revenues or Retail Sales from the subtenants under
such subleases and shall include the rent received by Tenant or its subsidiaries thereunder. Net Revenue shall not include
online or internet-based revenue (including online gaming or internet-based sports-related gaming, “iGaming”), except to
the extent that the online or internet-based revenue is derived from gaming, wagering or related activity that occurs while
the patron is physically located at, in or on Leased Property (“Onsite iGaming”). For the avoidance of doubt, and with
respect to Onsite iGaming, Net Revenue shall (i) not include any revenues that Tenant, Tenant’s Parent or any of their
Affiliates receives from market access agreements or “skin” agreements for iGaming between Tenant, Tenant’s Parent or
any of their Affiliates and any third party, and (ii) include all income, whether reported in net revenue or any other income
statement line item of Tenant, Tenant’s Parent or any of their Affiliates. Tenant shall be responsible for any incremental
costs associated with tracking Onsite iGaming, including by way of geo-location related technology or otherwise
(collectively, “Online Tracking”). Notwithstanding the foregoing, Tenant shall not be required to track Onsite Gaming
until such time as Online Tracking is installed by Tenant at the Leased Property, which shall be as soon as reasonably
practicable but no later than six months after the launch of Onsite iGaming. In addition, Net Revenue attributed to Onsite
iGaming at each Leased Property shall not be less than $0 on an annual basis. The allocation of iGaming Promotional
Allowances for purposes of determining Net Revenue shall be limited to the same percentage as Onsite iGaming revenue
for such applicable Leased Property of total iGaming revenue; provided that iGaming Promotional Allowances shall not
exceed fifteen percent (15%) of Onsite iGaming Net Revenue.”
1.2
following language:
The definition of Adjusted Revenue of the Master Lease is hereby amended and restated in its entirety with the
“Adjusted Revenue: For any Test Period, Net Revenue (i) minus expenses other than Specified Expenses and (ii) plus
Specified Proceeds, if any; provided, however, that for purposes of calculating Adjusted Revenue, Net Revenue shall not
include Gaming Revenues, Retail Sales or Promotional Allowances of any subtenants of Tenant or any deemed payments
under subleases of this Master Lease, licenses or other access rights from Tenant to its operating subsidiaries. Adjusted
Revenue 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 since the beginning of any Test Period of Tenant as if each
such increase or decrease had been effected on the first day of such Test Period. Notwithstanding the foregoing, with
respect to the deduction of expenses related to or arising from Onsite iGaming under subsection (i) above, only Eligible
iGaming Expenses may be deducted.”
1.3
The following definition of Eligible iGaming Expenses is hereby inserted into Article II of the Master Lease:
“Eligible iGaming Expenses: shall mean any expenses incurred directly for Onsite iGaming, and shall not include, (i) any
expense that is associated with the development of the sports betting or iGaming applications and related products
(including, if applicable and for the sake of clarity, the amortization of any capitalized expenses), (ii) any expense
associated with the acquisition of Barstool or the initial licensing of sports betting or
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iGaming, (iii) start-up costs associated with the introduction of sports betting or iGaming, (iv) research and development-
type of expenses, and (v) any other indirect expenses related to sports betting or iGaming.”
AMENDMENT TO ARTICLE VII OF THE MASTER LEASE
Article II
2.1 Section 7.2(d)(ii) of the Master Lease is hereby amended and restated in its entirety with the following language:
“(ii) when calculating the Percentage Rent due, the Net Revenue for each and every such Facility whose operations have
permanently ceased shall in the year of such cessation, and for each year thereafter, be equal to the Net Revenue for such Facility
for the calendar year immediate prior to the year in which the Facility permanently ceased its operations.”
2.2 The second to last grammatical sentence of Section 7.4(a) of the Master Lease is hereby amended and restated in its
entirety with the following language: “Should Landlord notify Tenant that it does not intend to pursue such Greenfield Project (or
should Landlord decline to notify Tenant of its affirmative response within such thirty (30) day period), or if the parties despite
good faith efforts on both sides fail to reach agreement on the terms under which such opportunity would be jointly pursued
under this Master Lease and such new Greenfield Project would become a portion of the Leased Property hereunder, in any event,
within forty-five (45) days after Landlord’s notice to Tenant of Landlord’s intent to participate in such Greenfield Project, then (a)
for each and every Affected Facility the Net Revenue when used in the calculation of Percentage Rent will thereafter subject to a
floor, which floor shall be based on the Net Revenue for such Affected Facility for the calendar year immediately prior to the
year in which the Greenfield Project is first opened to the public (the “Greenfield Floor”), (b) thereafter when calculating
Percentage Rent, the Net Revenue for such Affected Facility shall be equal to the greater of (i) the actual Net Revenue derived
from such Affected Facility for the applicable calculation period, and (ii) the Greenfield Floor, and (c) for the avoidance of doubt,
Percentage Rent shall be subject to normal periodic adjustments each Percentage Rent Reset Year and in accordance with Section
14.6; provided that the Net Revenue for the Affected Facility may not be reduced below the Greenfield Floor.”
2.3 Section 7.4(e) of the Master Lease is hereby amended and restated in its entirety with the following language:
“Tenant’s Rights to Acquire or Operate Existing Facilities. In the event Tenant or its Affiliate acquires or operates any existing
competing Gaming Facility within the Restricted Area (a “Competing Facility”), (a) for each and every Affected Facility the Net
Revenue derived from such Affected Facility when used in the calculation of Percentage Rent will thereafter be subject to a floor,
which floor shall be based on the Net Revenue for such Affected Facility for the calendar year immediately prior to the year in
which the Competing Facility is acquired or first operated by Tenant or its Affiliate (the “Competing Facility Floor”), (b)
thereafter when calculating Percentage Rent, the Net Revenue for such Affected Facility shall be equal to the greater of (i) the
actual Net Revenue derived from such Affected Facility for the applicable calculation period, and (ii) the Competing Facility
Floor, and (c) for the avoidance of doubt, Percentage Rent shall be subject to normal periodic adjustments each Percentage Rent
Reset Year and in accordance with Section 14.6; provided that the Net Revenue for the Affected Facility may not be reduced
below the Competing Facility Floor.”
Article III
AFFECTED FACILITY
3.1 Tenant notified Landlord of its intention to develop two new Gaming Facilities – Hollywood Casino Morgantown in
Morgantown, Pennsylvania (“Morgantown”) and
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Hollywood Casino York in York, Pennsylvania (“York”), each of which is located within sixty (60) miles from that Facility
commonly known as Hollywood Casino Penn National Race Course located in Grantville, Pennsylvania (“PNRC”). Pursuant to
Section 7.4(a) of the Master Lease, York and Morgantown each constitute a “Greenfield Project” in which Landlord has declined
to participate and PNRC is an “Affected Facility”.
3.2 Commencing on the earlier to occur of the date Morgantown or York first opens to the public (the “Opening Date”),
the Net Revenue for PNRC used in the calculation of Percentage Rent due under the Master Lease shall be subject to a Greenfield
Floor, which shall be the greater of (i) an amount equal to the annualized Net Revenues for PNRC based upon the Net Revenues
for PNRC for the period (a) commencing on the later of January 1, 2021 and the first date in 2021 that PNRC is open to the
public and (b) ending (and including) on the Opening Date, and (ii) the Greenfield Floor calculated in accordance with Section
7.4(a) of the Master Lease. Percentage Rent shall remain subject to normal periodic adjustments in accordance with the terms of
the Master Lease, but the annual Net Revenue derived from PNRC for purposes of calculating Percentage Rent may not be
reduced below the Greenfield Floor.
3.3 Notwithstanding the foregoing, to the extent permitted by applicable Legal Requirements and as permitted by a
private letter ruling from the Internal Revenue Service, from and after the Opening Date, when calculating the Escalation for any
Lease Year for which the Greenfield Floor, as determined in accordance with Section 4.2 above, is greater than the actual PNRC
Net Revenues the calculation of the Adjusted Revenue to Rent Ratio (i) shall exclude any Adjusted Revenue received from
PNRC during the applicable period for purposes of “Adjusted Revenue”, and (ii) the term “Rent” shall mean the Rent minus the
PNRC Rent for such Lease Year. For purposes hereof, the “PNRC Rent” for any Lease Year shall be an amount equal to (x)
$21,066,000 of Building Base Rent, which amount shall increase each Lease Year by the Escalation in accordance with the
Master Lease other than for any Lease Year in which the Greenfield Floor is greater than the actual PNRC Net Revenues, plus
(y) $6,294,000 of Land Base Rent plus (z) the Percentage Rent attributable to PNRC when calculated using the Greenfield Floor
as determined in Section 4.2 above. For the avoidance of doubt, each Lease Year the full Building Base Rent (inclusive of any
portion of the PNRC Rent attributable to Building Base Rent) shall increase in accordance with the provisions of the Master
Lease and for any Lease Year in which the Escalation is calculated pursuant to this Section 4.3, the Building Base Rent shall
increase to an annual amount equal to the sum of (x) the full Building Base Rent for the immediately preceding Lease Year
(inclusive of any portion of the PNRC Rent attributable to Building Base Rent) and (y) the Escalation as calculated in accordance
with this Section 4.3.
Article IV
AMENDMENT TO ARTICLE XIV TO THE MASTER LEASE
4.1 Section 14.6 of the Master Lease is hereby amended and restated in its entirety with the following language:
“Section 14.6 Termination of Master Lease; Abatement of Rent. In the event this Master Lease is terminated as to an
affected Leased Property pursuant to Section 1.4 (with respect to the Term terminating in respect of a Barge-Based Facility),
Section 8.2 (in respect of Tenant being in jeopardy of losing a Gaming License or Landlord being in jeopardy of failing to comply
with a regulatory requirement material to the continued operation of a Facility), Section 14.5 (in the event Facility Mortgagee
elects to apply insurance proceeds to pay down indebtedness secured by a Facility Mortgage following the damage to or
destruction of all or any portion of the Leased Property or such prepayment is required under the related financing document) or
Section 15.5 (as provided therein) (such termination or cessation, a “Leased Property Rent Adjustment Event”), then:
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(i) the Building Base Rent due hereunder from and after the effective date of any such Leased Property Rent
Adjustment Event shall be reduced by an amount determined by multiplying (A) a fraction, (x) the numerator of which
shall be the fair market value for the affected Leased Property immediately prior to the effective date of the Leased
Property Rent Adjustment Event and (y) the denominator of which shall be the fair market value for all of the Leased
Property then subject to the terms of this Master Lease, including the affected Leased Property immediately prior to the
effective date of such Leased Property Rent Adjustment Event (in each case the fair market value as determined in good
faith by the parties or if the parties cannot agree, by an Expert pursuant to Section 34.1 of this Master Lease), by (B) the
Building Base Rent payable under this Master Lease immediately prior to the effective date of the Leased Property Rent
Adjustment Event as to the affected Leased Property;
(ii) the CT Land Base Rent due hereunder from and after the effective date of any such Leased Property Rent
Adjustment Event with respect to a CT Facility shall be reduced by an amount determined by multiplying (A) a fraction,
(x) the numerator of which shall be the fair market value for the affected CT Facility immediately prior to the effective
date of the Leased Property Rent Adjustment Event and (y) the denominator of which shall be the fair market value for all
of the CT Facilities then subject to the terms of this Master Lease, including the affected CT Facility, immediately prior to
the effective date of the Leased Property Rent Adjustment Event (in each case the fair market value as determined in good
faith by the parties or if the parties cannot agree, by an Expert pursuant to Section 34.1 of this Master Lease), by (B) the
CT Land Base Rent payable under this Master Lease immediately prior to the effective date of the Leased Property Rent
Adjustment Event as to the affected CT Facility;
(iii) the Other Land Base Rent due hereunder from and after the effective date of any such Leased Property Rent
Adjustment Event with respect to a Leased Property (other than a CT Facility) shall be reduced by an amount determined
by multiplying (A) a fraction, (x) the numerator of which shall be the fair market value for the affected Leased Property
immediately prior to the effective date of the Leased Property Rent Adjustment Event and (y) the denominator of which
shall be the fair market value for all of the Leased Property (other than the CT Facilities) then subject to the terms of this
Master Lease, including the affected Leased Property immediately prior to the effective date of the Leased Property Rent
Adjustment Event (in each case the fair market value as determined in good faith by the parties or if the parties cannot
agree, by an Expert pursuant to Section 34.1 of this Master Lease), by (B) the Other Land Base Rent payable under this
Master Lease immediately prior to the effective date of the Leased Property Rent Adjustment Event as to the affected
Leased Property;
(iv) the Percentage Rent due under clause (1) of the definition of Percentage Rent from and after the effective date of
any such Leased Property Rent Adjustment Event with respect to a Leased Property (other than a CT Facility), shall be
reduced by an amount determined by multiplying (A) a fraction, (x) the numerator of which shall be the fair market value
for the affected Leased Property immediately prior to the effective date of the Leased Property Rent Adjustment Event
and (y) the denominator of which shall be the fair market value for all of the Leased Property (other than the CT
Facilities) then subject to the terms of this Master Lease, including the affected Leased Property immediately prior to the
effective date of the Leased Property Rent Adjustment Event (in each case the fair market value as determined in good
faith by the parties or if the parties cannot agree, by an Expert pursuant to Section 34.1 of this Master Lease), by (B) the
Percentage Rent payable under clause (1) of the definition of Percentage Rent immediately prior to the effective date of
the Leased Property Rent Adjustment Event as to the affected Leased Property;
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(v) the amount set forth in clause (b) of the proviso of clause (1) of the definition of Percentage Rent shall be modified
from and after the effective date of any such Leased Property Rent Adjustment Event with respect to a Leased Property
(other than a CT Facility) by reducing the amount set forth in clause (b) of the proviso of clause (1) of the definition of
Percentage Rent by an amount determined by multiplying (A) a fraction, (x) the numerator of which is the fair market
value for the affected Leased Property immediately prior to the effective date of the Leased Property Rent Adjustment
Event immediately prior to the effective date of the Leased Property Rent Adjustment Event and (y) the denominator of
which is the fair market value for all of the Leased Property (other than the CT Facilities) then subject to the terms of this
Master Lease, including the affected Leased Property immediately prior to the effective date of the Leased Property Rent
Adjustment Event (in each case the fair market value as determined in good faith by the parties or if the parties cannot
agree, by an Expert pursuant to Section 34.1 of this Master Lease), by (B) the amount set forth in clause (b) of the
proviso of clause (1) of the definition of Percentage Rent immediately prior to the effective date of the Leased Property
Rent Adjustment Event as to the affected Leased Property;
(vi) the calculation of Percentage Rent due under clause (2) of the definition of Percentage Rent shall be modified
from and after the effective date of any such Leased Property Rent Adjustment Event with respect to a CT Facility by
reducing the amount set forth in clause (2)(ii) of the definition of Percentage Rent by an amount determined by
multiplying (A) a fraction, (x) the numerator of which is the fair market value for the affected CT Facility immediately
prior to the effective date of the Leased Property Rent Adjustment Event and (y) the denominator of which is the fair
market value for all of the CT Facilities subject to the Master Lease, including the affected CT Facility immediately prior
to the effective date of the Leased Property Rent Adjustment Event (in each case the fair market value as determined in
good faith by the parties or if the parties cannot agree, by an Expert pursuant to Section 34.1 of this Master Lease), by
(B) the amount set forth in clause (2)(ii) of the definition of Percentage Rent (in each case, determined by reference to
the most recent Test Period for which Tenant’s Parent’s financial results are available); and
(vii) Landlord shall retain any claim which Landlord may have against Tenant for failure to insure such Leased
Property as required by Article XIII.
Notwithstanding anything to the contrary contained herein, in no event shall the termination of the Master Lease as to the Resorts
Casino Tunica property identified on Annex A attached to the Fourth Amendment, as a result of Tenant discontinuing operations
and forfeiting the Gaming License for such Additional Leased Property be considered a “Leased Property Rent Adjustment
Event,” and no adjustments to Rent will be made as a result of the closure of the Resorts Casino Tunica property, including
pursuant to Section 7.2(d) or elsewhere in this Master Lease.”
AUTHORITY TO ENTER INTO AMENDMENT
Article V
Each party represents and warrants to the other that: (i) this Amendment 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
Amendment and the Master Lease, as amended hereby, within the State(s) where any portion of the Leased Property is located,
and (iii) neither this Amendment, the Master Lease, as amended hereby, 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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Article VI
MISCELLANEOUS
6.1 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 Amendment, 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
Amendment, 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.
6.2 Costs and Expenses; Fees. Each party shall be responsible for and bear all of its own expenses incurred in
connection with pursuing or consummating this Amendment and the transactions contemplated by this Amendment, including,
but not limited to, fees and expenses, legal counsel, accountants, and other facilitators and advisors.
6.3 Choice of Law and Forum Selection Clause. This Amendment shall be construed and interpreted, and the rights of
the parties shall be determined, in accordance with the substantive Laws of the State of New York without regard to the conflict
of law principles thereof or of any other jurisdiction.
6.4 Counterparts; Facsimile Signatures. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same instrument. In proving this
Amendment, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom
enforcement is sought. Any counterpart may be executed by facsimile signature and such facsimile signature shall be deemed an
original.
6.5 No Further Modification. Except as modified hereby, the Master Lease remains in full force and effect.
[Signature Page to Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by each of the undersigned as of the
date first above written.
LANDLORD:
GLP CAPITAL, L.P.
By: /s/ Brandon J. Moore __________
Name: Brandon J. Moore
Title: EVP, General Counsel & Secretary
TENANT:
PENN TENANT, LLC
By: Penn National Gaming, Inc.
its managing member
By: /s/ Harper Ko _________________
Name: Harper Ko
Title: EVP, General Counsel and Secretary
ACTIVE/103647909.7
W/3796224v21
Execution Version
AMENDED AND RESTATED
MASTER LEASE
ACTIVE/119768607.18
1.1 Leased Property
1.2 Single, Indivisible Lease
1.3 Term
1.4 Renewal Terms
2.1 Definitions
3.1 Rent
3.2 Late Payment of Rent
3.3 Method of Payment of Rent
3.4 Net Lease
4.1 Impositions
4.2 Utilities
4.3 Impound Account
5.1 No Termination, Abatement, etc
6.1 Ownership of the Leased Property
6.2 Tenant’s Property
6.3 Guarantors; Tenant’s Property
7.1 Condition of the Leased Property
7.2 Use of the Leased Property
7.3 Reserved.
7.4 Competing Business.
TABLE OF CONTENTS
TO
MASTER LEASE
ARTICLE I
ARTICLE II
ARTICLE III
ARTICLE IV
ARTICLE V
ARTICLE VI
ARTICLE VII
ARTICLE VIII
8.1 Representations and Warranties
8.2 Compliance with Legal and Insurance Requirements, etc
8.3 Zoning and Uses
8.4 Compliance with Ground Lease.
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9.1 Maintenance and Repair
9.2 Encroachments, Restrictions, Mineral Leases, etc
ARTICLE IX
ARTICLE X
10.1 Construction of Capital Improvements to the Leased Property
10.2 Construction Requirements for All Capital Improvements
10.3 Landlord’s Right of First Offer to Fund
ARTICLE XI
ARTICLE XII
ARTICLE XIII
11.1 Liens
12.1 Permitted Contests
13.1 General Insurance Requirements
13.2 Maximum Foreseeable Loss
13.3 Additional Insurance
13.4 Waiver of Subrogation
13.5 Policy Requirements
13.6 Increase in Limits
13.7 Blanket Policy
13.8 No Separate Insurance
ARTICLE XIV
14.1 Property Insurance Proceeds
14.2 Tenant’s Obligations Following Casualty
14.3 No Abatement of Rent
14.4 Waiver
14.5 Insurance Proceeds Paid to Facility Mortgagee
14.6 Termination of Master Lease; Abatement of Rent
15.1 Condemnation.
15.2 Award Distribution
15.3 Temporary Taking
15.4 Condemnation Awards Paid to Facility Mortgagee
15.5 Termination of Master Lease; Abatement of Rent
ARTICLE XV
ARTICLE XVI
16.1 Events of Default
16.2 Certain Remedies
16.3 Damages
16.4 Receiver
16.5 Waiver
16.6 Application of Funds
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17.1 Permitted Leasehold Mortgagees.
17.2 Landlord’s Right to Cure Tenant’s Default
17.3 Landlord’s Right to Cure Debt Agreement
18.1 Sale of the Leased Property
19.1 Holding Over
20.1 Risk of Loss
21.1 General Indemnification
22.1 Subletting and Assignment
22.2 Permitted Assignments
22.3 Permitted Sublease Agreements
22.4 Required Assignment and Subletting Provisions
22.5 Costs
22.6 No Release of Tenant’s Obligations; Exception
23.1 Officer’s Certificates and Financial Statements.
23.2 Public Offering Information
23.3 Financial Covenants
23.4 Landlord Obligations
ARTICLE XVII
ARTICLE XVIII
ARTICLE XIX
ARTICLE XX
ARTICLE XXI
ARTICLE XXII
ARTICLE XXIII
24.1 Landlord’s Right to Inspect
25.1 No Waiver
26.1 Remedies Cumulative
27.1 Acceptance of Surrender
28.1 No Merger
29.1 Conveyance by Landlord
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ARTICLE XXIV
ARTICLE XXV
ARTICLE XXVI
ARTICLE XXVII
ARTICLE XXVIII
ARTICLE XXIX
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30.1 Quiet Enjoyment
31.1 Landlord’s Financing
31.2 Attornment
31.3 Compliance with Facility Mortgage Documents
ARTICLE XXX
ARTICLE XXXI
ARTICLE XXXII
32.1 Hazardous Substances- Facilities other than 1 Jackpot
32.2 1 Jackpot. Notwithstanding anything contained in this Master Lease to the contrary, the
following provisions shall apply solely with respect to 1 Jackpot:
st
st
st
33.1 Memorandum of Lease
33.2 Reserved.
33.3 Tenant Financing
34.1 Expert Valuation Process.
35.1 Notices
ARTICLE XXXIII
ARTICLE XXXIV
ARTICLE XXXV
ARTICLE XXXVI
36.1 Transfer of Tenant’s Property and Operational Control of the Facilities
36.2 Determination of Successor Lessee and Gaming Assets FMV.
36.3 Operation Transfer
ARTICLE XXXVII
ARTICLE XXXVIII
ARTICLE XXXIX
ARTICLE XL
ARTICLE XLI
37.1 Attorneys’ Fees
38.1 Brokers
39.1 Anti-Terrorism Representations
40.1 GLP REIT Protection
41.1 Survival
41.2 Severability
41.3 Non-Recourse
41.4 Successors and Assigns
41.5 Governing Law
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41.6 Waiver of Trial by Jury
41.7 Amendment and Restatement; Entire Agreement
41.8 Headings
41.9 Counterparts
41.10 Interpretation
41.11 Time of Essence
41.12 Further Assurances
41.13 Gaming Regulations
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EXHIBITS AND SCHEDULES
EXHIBIT A – LIST OF FACILITIES
EXHIBIT B – LEGAL DESCRIPTIONS
EXHIBIT C – DELETED
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
SCHEDULE 1A – DISCLOSURE ITEMS
SCHEDULE 1.1 – EXCLUSIONS FROM LEASED PROPERTY
SCHEDULE 6.3 – GUARANTORS UNDER THE MASTER LEASE
ACTIVE/119768607.18
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AMENDED AND RESTATED MASTER LEASE
This AMENDED AND RESTATED MASTER LEASE (the “Master Lease”) is entered into as of February 21, 2023,
but is effective as of January 1, 2023 (the “Effective Date”), by and between GLP Capital, L.P. (together with its permitted
successors and assigns, “Landlord”), and Penn Tenant, LLC (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. Landlord and Tenant are parties to that certain Master Leased dated as of November 1, 2013, as amended by
that certain First Amendment to Master Lease dated as of March 5, 2014, that certain Second Amendment to Master Lease dated
April 18, 2014, that certain Third Amendment to Master Lease dated as of September 20, 2016, that certain Fourth Amendment
to Master Lease dated as of May 1, 2017, that certain Fifth Amendment to Master Lease dated as of June 19, 2018, that certain
Sixth Amendment to Master Lease dated as of August 8, 2018, that certain Seventh Amendment to Master Lease dated as of
October 31, 2018, that certain Eighth Amendment to Master Lease dated November 20, 2018, and that certain Ninth Amendment
to Master Lease dated January 14, 2022 (as so amended, the “Original Master Lease”) pursuant to which Landlord leased
certain gaming facilities.
C. Landlord and Tenant desire to amend and restate the Original Master Lease in its entirety to: (i) remove five
(5) facilities from the Leased Property, (ii) adjust the Rent as a result of removing five (5) facilities, (iii) acknowledge that the
Facilities commonly known as “Argosy Casino Sioux City” in Sioux City, Iowa and “Resorts Casino Tunica” in Tunica Resorts,
Mississippi have previously been removed from the Leased Property, and (iv) amend certain other terms and provisions as more
particularly set forth herein.
D. A list of the fourteen (14) facilities covered by this Master Lease as of the date hereof is attached hereto as
Exhibit A (each a “Facility,” and collectively, the “Facilities”).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
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 interest in and to the following with respect to each of the
Facilities (collectively, the “Leased Property”):
(a) the real property or properties described in Exhibit B attached hereto (collectively, the “Land”);
(b) all buildings, structures, Fixtures (as hereinafter defined) 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, and, to the extent constituting “real property” as
that term is defined in Treasury Regulation §1.856-3(d), all buildings, structures, Fixtures and other improvements of every kind
now or hereafter located on the leased real property or the barges serving as foundations or points of access connected thereto
(collectively, the “Leased Improvements”);
(c) all easements, rights and appurtenances relating to the Land and the Leased Improvements; and
(d) all equipment, machinery, fixtures, and other items of property, including all components thereof, that (i) are
now or hereafter located in, on or used in connection with and permanently affixed to or otherwise incorporated into the Leased
Improvements and (ii) qualify as Long-Lived Assets, together with all replacements, modifications, alterations and additions
thereto (collectively, the “Fixtures”);
in each case, with respect to clauses 1.1(b) and 1.1(d) above, to the extent constituting “real property” as that term is defined in
Treasury Regulation §1.856-3(d).
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 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,
Leased Property shall exclude those items referenced on Schedule 1.1.
1.2 Single, Indivisible Lease. 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 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. 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
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all (and only as to all) of the Leased Property. The parties may amend this Master Lease from time to time to include one or more
additional Facilities as part of the Leased Property and such future addition to 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.
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”) commenced on November 1, 2013 (the “Commencement Date”) and
will end on October 31, 2033, subject to renewal as set forth in Section 1.4 below. Notwithstanding the foregoing, and for the
avoidance of doubt, the Commencement Date with respect to (i) 1 Jackpot was May 1, 2017, (ii) the Dayton Facility was August
28, 2014, and (iii) the Mahoning Valley Facility was September 17, 2014.
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1.4 Renewal Terms. The term of this Master Lease may be extended for three (3) separate “Renewal Terms” of
five (5) years each if: (a) 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 it desires to exercise its right to extend this Master Lease for one (1)
Renewal Term; and (b) no Event of Default shall have occurred and be continuing on the date Landlord receives the Renewal
Notice (the “Exercise Date”) or on the last day of the then current Term. 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.
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; provided, however, that the exercise of each Renewal Term shall be applicable with respect
to each Barge-Based Facility only if an Expert has confirmed prior to the applicable Exercise Date (but no more than 180 days
prior thereto) that exercising such Renewal Term with respect to such Barge-Based Facility would not cause the aggregate Term
to exceed eighty percent (80%) of the useful life of such Barge-Based Facility as measured from the Commencement Date or the
estimated residual fair market value of such Barge-Based Facility at the end of the applicable Renewal Term to be less than 20%
of the fair market value of such Barge-Based Facility as of the Commencement Date without regard to inflation or deflation. If
exercising any Renewal Term would cause the aggregate Term to exceed eighty percent (80%) of any Barge-Based Facility’s
estimated useful life, then (i) the remainder of the Leased Property (other than any Barge-Based Facility for which the aggregate
Term would exceed eighty percent (80%) of such Barge-Based Facility’s estimated useful life or the estimated residual fair
market value of such Barge-Based Facility at the end of the applicable Renewal Term to be less than twenty percent (20%) of the
fair market value of such Barge-Based Facility as of the Commencement Date without regard to inflation or deflation) shall
continue to be demised hereunder for the entire applicable Renewal Term, and (ii) each such Barge-Based Facility shall be
included in such Renewal Term only for the period of time that is within (and does not exceed) eighty percent (80%) of the
estimated useful life of such Barge-Based Facility and the estimated residual fair market value of such Barge-Based Facility at
the end of the applicable Renewal Term shall be not less than twenty percent (20%) of the fair market value of such Barge- Based
Facility as of the Commencement Date without
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regard to inflation or deflation and shall thereafter not be a part of the Leased Property hereunder and the Base Rent due
hereunder shall thereafter be reduced to account for the period of time each such Barge-Based Facility is not part of the Leased
Property by an amount determined in accordance with the formula set forth in Section 14.6 hereof and such Barge-Based Facility
and the Tenant’s Property related thereto shall be sold at fair market value, with Landlord entitled to the value of the Leased
Property relating to such Barge-Based Facility and Tenant entitled to the value of the Tenant’s Property relating to such Barge-
Based Facility.
Notwithstanding anything contained herein to the contrary, Landlord and Tenant hereby acknowledge and agree that the Term of
this Master Lease shall at all times be co-terminus with the term of the Sister Master Lease. As a result thereof, in the event (1)
Tenant elects to extend the Term of this Master Lease for one or more Renewal Terms, Tenant or its Affiliate, as applicable, shall
be required to exercise its options to renew the term of the Sister Master Lease, and (2) Tenant elects to extend the term of the
Sister Master Lease, Tenant shall be required to exercise its options to renew the Term under the Master Lease so that the Term
under this Master Lease at all times remains co-terminus with the term of the Sister Master Lease. In the event Tenant or its
Affiliate delivers a Renewal Notice (as defined in the Sister Master Lease) for a Renewal Term (as defined in the Sister Master
Lease) in accordance with the terms of the Sister Master Lease and fails to timely deliver a Renewal Notice hereunder, Tenant
shall automatically be deemed to have delivered a Renewal Notice under this Section 1.4.
ARTICLE II
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.
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1 Jackpot: The Facility commonly known as the “1 Jackpot Casino” in Tunica Resorts, Mississippi.
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AAA: As defined in Section 34.1(b).
Accounts: All accounts, including deposit accounts and any Facility Mortgage Reserve Account (to the extent
actually funded by Tenant), all rents, profits, income, revenues or rights to payment or reimbursement derived from the use of any
space within the Leased
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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, Net Revenue (i) minus expenses other than Specified Expenses and (ii)
plus Specified Proceeds, if any; provided, however, that for purposes of calculating Adjusted Revenue, Net Revenue shall not
include Gaming Revenues, Retail Sales or Promotional Allowances of any subtenants of Tenant or any deemed payments under
subleases of this Master Lease, licenses or other access rights from Tenant to its operating subsidiaries. Adjusted Revenue 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 since the beginning of any Test Period of Tenant as if each such increase or decrease had
been affected on the first day of such Test Period. Notwithstanding the foregoing, with respect to the deduction of expenses
related to or arising from Onsite iGaming under subsection (i) above, only Eligible iGaming Expenses may be deducted.
Adjusted Revenue to Rent Ratio: As at any date of determination, the ratio for any period of Adjusted Revenue to
Rent. For purposes of calculating the Adjusted Revenue to Rent Ratio, Adjusted Revenue shall be calculated on a pro forma basis
(and shall be calculated to give effect to (x) pro forma adjustments reasonably contemplated by Tenant and (y) such other pro
forma adjustments consistent with Regulation S-X under the Securities Act) to give effect to any material acquisitions and
material asset sales consummated by the Tenant or any Guarantor during any Test Period of Tenant 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, (i) 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 and (ii) in the
event Rent is to be increased in connection with the addition or inclusion of a Long-Lived Asset that is projected to increase
Adjusted Revenue, such Rent increase shall not be taken into account in calculating the Adjusted Revenue to Rent Ratio until the
first fiscal quarter following the completion of the installation or construction of such Long-Lived Assets. Notwithstanding
anything to the contrary contained herein, including in the definition of Adjusted Revenue above, with respect to 1 Jackpot,
Adjusted Revenue and Rent attributable to 1 Jackpot shall include actual Adjusted Revenue received and Rent incurred by
Tenant during the Test Period in which
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1 Jackpot is added to the Master Lease and shall not be determined on a pro forma basis as otherwise provided herein.
Affected Facility: As defined in Section 7.4(a).
Affiliate: When used with respect to any corporation, limited liability company, or partnership, the term “Affiliate”
shall mean any person which, directly or indirectly, controls or is controlled by or is under common control with such
corporation, limited liability company or partnership. 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.
Appointing Authority: As defined in Section 34.1(b).
Award: All compensation, sums or anything of value awarded, paid or received on a total or partial Taking.
Barge-Based Facility: Each Facility identified in Exhibit A, as amended from time to time, as a “Barge-Based
Facility.”
Base Rent: The sum of (i) the Building Base Rent, and (ii) the Land Base Rent.
Building Base Rent:
(A) Commencing on the Effective Date, an annual amount equal to two hundred eight million, one hundred
ninety-five thousand Dollars ($208,195,000); provided, however, that commencing on November 1, 2023 and continuing on each
anniversary thereof thereafter during the Initial Term, the Building Base Rent shall increase to an annual amount equal to the sum
of (i) the Building Base Rent for the immediately preceding Lease Year, and (ii) the Escalation.
(B) The Building Base Rent for the first year of each Renewal Term shall be an annual amount equal to the sum
of (i) the Building Base Rent for the immediately preceding Lease Year, and (ii) the Escalation. Commencing with the second
(2nd) Lease Year of any Renewal Term and continuing each Lease Year thereafter during such Renewal Term, the Building Base
Rent shall increase to an annual amount equal to the sum of (i) the Building Base Rent for the immediately preceding Lease Year,
and (ii) the Escalation.
(C) As applicable during the Term, Building Base Rent shall be increased pursuant to Section 10.3(c) in respect
of Capital Improvements funded by Landlord (which increases shall, in each case, be subject to the Escalations provided in the
foregoing clauses (A) and (B)).
Building Base Rent shall be subject to further adjustment as and to the extent provided in Section 14.6.
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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 that would be considered a capital improvement under GAAP, including without limitation 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, all of which shall constitute a portion
of the Leased Improvements and Leased Property hereunder in accordance with Section 10.3.
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 asset for which Tenant or any of its Subsidiaries (directly or through
Tenant’s Parent) 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 part of
any real property of Tenant or any of its Subsidiaries or any part thereof, 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 Tenant or any of its Subsidiaries or any part thereof by any governmental authority, civil or military.
Change in Control: (i) Any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as amended from time to time, and any successor statute), (a) 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’s Parent entitled to vote in an election of directors of Tenant’s Parent, or (b) shall have caused
the election of a majority of the members of the board of directors or equivalent body of Tenant’s Parent, which such members
have not been nominated by a majority of the members of the board of directors or equivalent body of Tenant’s Parent as such
were constituted immediately prior to such election, (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), (iii) (a) Tenant
ceasing to be a wholly-owned Subsidiary (directly or indirectly) of Tenant’s Parent or (b) Tenant’s Parent ceasing to control one
hundred percent (100%) of the voting power in the Equity Interests of Tenant or (iv) Tenant’s Parent consolidates with, or merges
with or into, any Person, or any Person consolidates with, or merges with or into, Tenant’s Parent, in any such event pursuant to a
transaction in which any of the outstanding Equity Interests of Tenant’s Parent ordinarily entitled to vote in an election of
directors of Tenant’s Parent or such other
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Person is converted into or exchanged for cash, securities or other property, other than any such transaction where the Equity
Interests of Tenant’s Parent ordinarily entitled to vote in an election of directors of Tenant’s 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).
Code: The Internal Revenue Code of 1986 and, to the extent applicable, the Treasury Regulations promulgated
thereunder, each as amended from time to time.
Commencement Date: As defined in Section 1.3.
Competing Facility: As defined in Section 7.4(e).
Competing Facility Floor: As defined in Section 7.4(e).
Condemnation: 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.
Consolidated Interest Expense: For any period, interest expense of Tenant and its Subsidiaries that are Guarantors
for such period as determined on a consolidated basis for Tenant and its Subsidiaries that are Guarantors in accordance with
GAAP.
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 published for the beginning of each Lease Year, divided by (ii) the CPI
published for the beginning of the first Lease Year. If the product is less than one, the CPI Increase shall be equal to one.
CPR Institute: As defined in Section 34.1(b).
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
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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 and/or its Affiliates, (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 and its 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 and opportunity to cure any breaches or defaults by Tenant thereunder within the cure period, if
any, that exists under such Debt Agreement.
Discretionary Transferee: A transferee that meets all of the following requirements: (a) such transferee has (1) at
least five (5) years of experience (directly or through one or more of its Subsidiaries) operating or managing casinos with
revenues in the immediately preceding fiscal year of at least seven hundred fifty million Dollars ($750,000,000) (or retains a
manager with such qualifications, which manager shall not be replaced other than in accordance with Article XXII hereof) that is
not in the business, and that does not have an Affiliate in the business, of leasing properties to gaming operators, 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 and its 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’s 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 Securities and Exchange
Act of 1934, 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) other than in the case of a Permitted Leasehold Mortgagee Foreclosing Party, (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 (including pursuant to a
Change in Control under Section 22.2(iii)(x) or Section 22.2(iii)(y)), its Indebtedness to EBITDA Ratio on a consolidated basis in
accordance with GAAP is less than 8:1 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 8:1 on a pro forma basis based on projected
earnings and after giving effect to the
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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.
Dollars and $: The lawful money of the United States.
EBITDA: For any Test Period, the consolidated net income or loss of the Parent Company of a Discretionary
Transferee (or, in the case of (x) a Permitted Leasehold Mortgagee Foreclosing Party, such Permitted Leasehold Mortgagee
Foreclosing Party or (y) a Discretionary Transferee that does not have a Parent Company, such Discretionary Transferee) on a
consolidated basis for such period, determined in accordance with GAAP, adjusted by excluding (1) income tax expense, (2)
consolidated interest expense (net of interest income), (3) depreciation and amortization expense, (4) any income, gains or losses
attributable to the early extinguishment or conversion of indebtedness or cancellation of indebtedness, (5) gains or losses on
discontinued operations and asset sales, disposals or abandonments, (6) impairment charges or asset write-offs including, without
limitation, those related to goodwill or intangible assets, long-lived assets, and investments in debt and equity securities, in each
case, in accordance with GAAP, (7) any non-cash items of expense (other than to the extent such non-cash items of expense
require or result in an accrual or reserve for future cash expenses), (8) extraordinary gains or losses and (9) unusual or non-
recurring gains or items of income or loss.
Effective Date Subleases: Means (i) each Specified Sublease, and (ii) each other sublease, license, or other
occupancy agreement in effect on the Effective Date constituting part of the Leased Property with respect to which Tenant is a
sublessor (or its equivalent) and for which (a) Landlord’s consent was given or (b) such sublease did not require Landlord’s
consent under the Original Master Lease.
Eligible iGaming Expenses: shall mean any expenses incurred directly for Onsite iGaming, and shall not include,
(i) any expense that is associated with the development of the sports betting or iGaming applications and related products
(including, if applicable and for the sake of clarity, the amortization of any capitalized expenses), (ii) any expense associated with
the acquisition of Barstool or the initial licensing of sports betting or iGaming, (iii) start-up costs associated with the introduction
of sports betting or iGaming, (iv) research and development-type of expenses, and (v) any other indirect expenses related to
sports betting or iGaming.
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 Gaming 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,
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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.
Equity Rights: With respect to any person, any then outstanding subscriptions, options, warrants, commitments,
preemptive rights or agreements of any kind (including any stockholders’ or voting trust agreements) for the issuance, sale,
registration or voting of any additional Equity Interests of any class, or partnership or other ownership interests of any type in,
such person; provided, however, that a debt instrument convertible into or exchangeable or exercisable for any Equity Interests
shall not be deemed an Equity Right.
Escalated Building Base Rent: For any Lease Year (other than the first Lease Year), an amount equal to one
hundred and two percent (102%) of the Building Base Rent as of the end of the immediately preceding Lease Year.
Escalation: For any Lease Year (other than the first Lease Year), the lesser of (a) an amount equal to the excess of
(i) the Escalated Building Base Rent for such Lease Year over (ii) the Building Base Rent for the immediately preceding Lease
Year, and (b) an amount (but not less than zero) that adding such amount to the Rent for the immediately preceding Lease Year
will have yielded an Adjusted Revenue to Rent Ratio for such preceding Lease Year of 1.8:1.
Event of Default: As defined in Article XVI.
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 Recital C. Facility Mortgage: As defined in Section 13.1.
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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 Mortgage Reserve Account: As defined in Section 31.3(b). Facility Mortgagee: As defined in Section
13.1.
Financial Statements: (i) For a Fiscal Year, consolidated statements of Tenant’s Parent and its consolidated
subsidiaries (as defined by GAAP) of income, stockholders’ equity and comprehensive income and cash flows for such period
and for the period from the beginning of the Fiscal Year to the end of such period and the related consolidated balance sheet as at
the end of such period, together with the notes thereto, all in reasonable detail and setting forth in comparative form the
corresponding figures for the corresponding period in the preceding Fiscal Year and prepared in accordance with GAAP and
audited by a “big four” or other nationally recognized accounting firm, and (ii) for a fiscal quarter, consolidated statements of
Tenant’s Parent’s income, stockholders’ equity and comprehensive income and cash flows for such period and for the period from
the beginning of the Fiscal Year to the end of such period and the related consolidated balance sheet as at the end of such period,
together with the notes thereto, all in reasonable detail and setting forth in comparative form the corresponding figures for the
corresponding period in the preceding Fiscal Year and prepared in accordance with GAAP.
Fiscal Year: The annual period commencing January 1 and terminating December 31 of each year.
Fixtures: As defined in Section 1.1(d).
Foreclosure Assignment: As defined in Section 22.2(iii).
Foreclosure COC: As defined in Section 22.2(iii).
Foreclosure Purchaser: As defined in Section 31.1.
GAAP: Generally accepted accounting principles consistently applied in the preparation of financial statements, as
in effect from time to time (except with respect to any financial ratio defined or described herein or the components thereof, for
which purposes GAAP shall refer to such principles as in effect as of the date hereof).
Gaming Assets FMV: As defined in Section 36.1.
Gaming Facility: A facility at which there are operations of slot machines, table games or pari-mutuel wagering.
Gaming License: Any license, permit, approval, finding of suitability or other authorization issued by a state
regulatory agency to operate, carry on or conduct any gambling
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game, gaming device, slot machine, race book or sports pool on the Leased Property, or 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, codes, decrees or
judgments, and Gaming License conditions or restrictions, 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 or entity holding a Gaming License, including, without limitation, any requirements imposed by a regulatory agency,
commission, board or other governmental body pursuant to the jurisdiction and authority granted to it under applicable law.
Gaming Revenues: As defined in the definition of Net Revenue.
GLP: Gaming and Leisure Properties, Inc..
Greenfield Floor: As defined in Section 7.4(a).
Greenfield Project: As defined in Section 7.4(a).
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 Schedule 1A hereto.
Ground Lessor: As defined in Section 8.6(a).
Guarantor: Any entity that guaranties the payment or collection of all or any portion of the amounts payable by
Tenant, or the performance by Tenant of all or any of its obligations, under this Master Lease, including any replacement
guarantor consented to by Landlord in connection with the assignment of the Master Lease or a sublease of Leased Property
pursuant to Article XXII.
Guaranty: That certain Amended and Restated 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, Landlord and certain Subsidiaries of Tenant from time to time party thereto, and any other guaranty in form and
substance reasonably satisfactory to the 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.
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Hazardous Substances: Collectively, any petroleum, petroleum product or by product or any substance, material or
waste regulated or listed pursuant to any Environmental Law.
Immaterial Subsidiary Guarantor: Any Subsidiary of Tenant having assets with an aggregate fair market value of
less than twenty-five million Dollars ($25,000,000) as of the most recent date on which Financial Statements have been delivered
to Landlord pursuant to Section 23.1(b); provided, however, that in no event shall the aggregate fair market value of the assets of
all Immaterial Subsidiary Guarantors exceed fifty million Dollars ($50,000,000) as of the most recent date on which Financial
Statements have been delivered to Landlord pursuant to Section 23.1(b).
Impartial Appraiser: As defined in Section 13.2.
Impositions: Collectively, all taxes, including capital stock, franchise, margin and other state taxes of Landlord, ad
valorem, real estate, sales, use, single business, gross receipts, transaction privilege, rent or similar taxes; 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; ground rents (pursuant to the Ground Leases); water, sewer and other utility levies and
charges; excise tax levies; fees including license, permit, inspection, authorization and similar fees; and all other governmental
charges, in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character in
respect of the Leased Property and/or the Rent and Additional Charges and all interest and penalties thereon attributable to any
failure in payment by Tenant (other than failures arising from the acts or omissions of Landlord) which at any time prior to,
during or in respect of the Term hereof may be assessed or imposed on or in respect of or be a lien upon (i) Landlord or
Landlord’s interest in the Leased Property, (ii) the Leased Property or any part thereof or any rent therefrom or any estate, right,
title or interest therein, or (iii) 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; provided, however, that
nothing contained in this Master Lease shall be construed to require Tenant to pay (a) any tax based on net income (whether
denominated as a franchise or capital stock or other tax) imposed on Landlord or any other Person, (b) any transfer, or net
revenue tax of Landlord or any other Person except Tenant and its successors, (c) any tax imposed with respect to the sale,
exchange or other disposition by Landlord of any Leased Property or the proceeds thereof, or (d) any principal or interest on any
indebtedness on or secured by the Leased Property owed to a Facility Mortgagee for which Landlord or its Subsidiaries or GLP is
the obligor; provided, further, Impositions shall include any tax, assessment, tax levy or charge set forth in clause (a) or (b) that is
levied, assessed or imposed in lieu of, or as a substitute for, any Imposition.
Indebtedness: Of any Person, without duplication, (a) all indebtedness of such Person for borrowed money,
whether or not evidenced by bonds, debentures, notes or similar instruments, (b) all obligations of such Person as lessee under
capital leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP,
(c) all obligations of such Person to pay the deferred purchase price of property or services
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(excluding trade accounts payable in the ordinary course of business), (d) all indebtedness secured by a lien on the property of
such Person, whether or not such indebtedness shall have been assumed by such Person, (e) all obligations, contingent or
otherwise, with respect to the face amount of all letters of credit (whether or not drawn) and banker’s acceptances issued for the
account of such Person, (f) all obligations under any agreement with respect to any swap, forward, future or derivative transaction
or option or similar arrangement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt
instruments or securities or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or
any similar transaction or combination of transactions, (g) all guarantees by such Person of any of the foregoing and (h) all
indebtedness of the nature described in the foregoing clauses (a)-(g) of any partnership of which such Person is a general partner.
Indebtedness to EBITDA Ratio: As at any date of determination, the ratio of (a) Indebtedness of the applicable (x)
Discretionary Transferee or Parent Company of the Discretionary Transferee or (y) in the case of a Permitted Leasehold
Mortgagee Foreclosing Party, the Permitted Leasehold Mortgagee Foreclosing Party (such Discretionary Transferee, Parent
Company or Permitted Leasehold Mortgagee Foreclosing Party, as applicable the “Relevant Party”) on a consolidated basis, as
of such date (excluding (i) Indebtedness of the type referenced in clauses (e) or (f) of the definition of Indebtedness or
Indebtedness referred to in clauses (d) or (g) of the definition of Indebtedness to the extent relating to Indebtedness of the type
referenced in clauses (e) or (f) of the definition of Indebtedness, to (b) EBITDA 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 Relevant Party and its
Subsidiaries since the beginning of any Test Period of the Relevant Party 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 period. In addition, for the avoidance of doubt, (i) if the Relevant Party or any Subsidiary of the Relevant Party has incurred
any Indebtedness or repaid, repurchased, acquired, defeased or otherwise discharged any Indebtedness since the end of the most
recent Test Period for which financial statements are available, 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 effect to the transactions whereby the applicable Discretionary Transferee becomes party to
the Master Lease or the Change in Control transactions permitted under Sections 22.2(iii) and shall include the Indebtedness and
EBITDA of Tenant and its Subsidiaries for the relevant period.
Initial Term: As defined in Section 1.3.
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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.
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 or 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).
Land Base Rent: An annual amount equal to forty-three million, thirty-five thousand Dollars ($43,035,000). Land
Base Rent shall be subject to further adjustment as and to the extent provided in Section 14.6.
Landlord: As defined in the preamble.
Landlord Representatives: As defined in Section 23.4.
Landlord Tax Returns: As defined in Section 4.1(b).
Lease Year: The first Lease Year for each Facility shall be the period commencing on the Commencement Date
and ending on the last day of the calendar month in which the first (1 ) anniversary of the Commencement Date occurs, and each
subsequent Lease Year for each Facility shall be each period of twelve (12) full calendar months after the last day of the prior
Lease Year.
st
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 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 either the Leased Property, Tenant’s
Property and all 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.
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Liquor Authority: As defined in Section 41.13(a).
Liquor Laws: As defined in Section 41.13(a).
Long-Lived Assets: (i) With respect to property owned by Tenant’s Parent as of the date hereof, all property
capitalized in accordance with GAAP with an expected life of not less than fifteen (15) years as initially reflected on the books
and records of Tenant’s Parent at or about the time of acquisition thereof or (ii) with respect to those assets purchased, replaced or
otherwise maintained by Tenant after the date hereof, such asset capitalized in accordance with GAAP with an expected life of
not less than fifteen (15) years as of or about the time of the acquisition thereof, as classified by Tenant in accordance with
GAAP.
Master Lease: As defined in the preamble.
Material Indebtedness: At any time, Indebtedness of any one or more of the Tenant (and its Subsidiaries) and any
Guarantor in an aggregate principal amount exceeding ten percent (10%) of Adjusted Revenue of Tenant and the Guarantors that
are Subsidiaries of Tenant on a consolidated basis over the most recent Test Period for which financial statements are available.
As of the date hereof, until financial statements are available for the initial Test Period, such amount shall be forty million Dollars
($40,000,000).
Maximum Foreseeable Loss: As defined in Section 13.2.
Net Revenue: The sum of, without duplication, (i) the amount received by Tenant (and its Subsidiaries and its
subtenants) from patrons at any Facility for gaming, less refunds and free promotional play provided to the customers and
invitees of Tenant (and its Subsidiaries and subtenants) pursuant to a rewards, marketing, and/or frequent users program, and less
amounts returned to patrons through winnings at any Facility (the amounts in this clause (i), “Gaming Revenues”); and (ii) the
gross receipts of Tenant (and its Subsidiaries and subtenants) for all goods and merchandise sold, the charges for all services
performed, or any other revenues generated by Tenant (and its Subsidiaries and subtenants) in, at, or from the Leased Property for
cash, credit, or otherwise (without reserve or deduction for uncollected amounts), but excluding any Gaming Revenues (the
amounts in this clause (ii), “Retail Sales”); less (iii) the retail value of accommodations, food and beverage, and other services
furnished without charge to guests of Tenant (and its Subsidiaries and subtenants) at any Facility (the amounts in this clause (iii),
“Promotional Allowance”). For the avoidance of doubt, gaming taxes and casino operating expenses (such as salaries, income
taxes, employment taxes, supplies, equipment, cost of goods and inventory, rent, office overhead, marketing and advertising and
other general administrative costs) will not be deducted in arriving at Net Revenue. Net Revenue will be calculated on an accrual
basis for these purposes, as required under GAAP. For the absence of doubt, if Gaming Revenues, Retail Sales or Promotional
Allowances of a Subsidiary or subtenant, as applicable, are taken into account for purposes of calculating Net Revenue, any rent
received by Tenant from such Subsidiary or subtenant, as applicable, pursuant to any sublease with such Subsidiary or subtenant,
as applicable, shall not also be taken into account for purposes of calculating Net Revenues. Notwithstanding the foregoing, with
respect to any Specified Sublease, Net Revenue shall not include Gaming Revenues or Retail Sales from the subtenants under
such subleases and
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shall include the rent received by Tenant or its subsidiaries thereunder. Net Revenue shall not include online or internet-based
revenue (including online gaming or internet-based sports-related gaming, “iGaming”), except to the extent that the online or
internet-based revenue is derived from gaming, wagering or related activity that occurs while the patron is physically located at,
in or on Leased Property (“Onsite iGaming”). For the avoidance of doubt, and with respect to Onsite iGaming, Net Revenue
shall (i) not include any revenues that Tenant, Tenant’s Parent or any of their Affiliates receives from market access agreements
or “skin” agreements for iGaming between Tenant, Tenant’s Parent or any of their Affiliates and any third party, and (ii) include
all income, whether reported in net revenue or any other income statement line item of Tenant, Tenant’s Parent or any of their
Affiliates. Tenant shall be responsible for any incremental costs associated with tracking Onsite iGaming, including by way of
geo-location related technology or otherwise (collectively, “Online Tracking”). Notwithstanding the foregoing, Tenant shall not
be required to track Onsite Gaming until such time as Online Tracking is installed by Tenant at the Leased Property, which shall
be as soon as reasonably practicable but no later than six months after the launch of Onsite iGaming. In addition, Net Revenue
attributed to Onsite iGaming at each Leased Property shall not be less than $0 on an annual basis. The allocation of iGaming
Promotional Allowances for purposes of determining Net Revenue shall be limited to the same percentage as Onsite iGaming
revenue for such applicable Leased Property of total iGaming revenue; provided that iGaming Promotional Allowances shall not
exceed fifteen percent (15%) of Onsite iGaming Net Revenue.
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).
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.
Overdue Rate: On any date, a rate equal to five (5) percentage points above the Prime Rate, but in no event greater
than the maximum rate then permitted under applicable law.
Parent Company: With respect to any Discretionary Transferee, any Person (other than an Investment Fund) (x) as
to which such Discretionary Transferee is a Subsidiary; and (y) which is not a Subsidiary of any other Person (other than an
Investment Fund).
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 Thirty-Two Million Nine Hundred Two Thousand Dollars
($32,902,000); provided, however, that the Percentage Rent shall be reset
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each Percentage Rent Reset Year to a fixed annual amount equal to the product of (i) four percent (4%) and (ii) the excess (if any)
of (a) the average annual Net Revenues of all the Facilities for the trailing five-year period (i.e., the first (1st) through fifth (5th)
Lease Years, the sixth (6th) through tenth (10th) Lease Years, the eleventh (11th) though fifteenth (15th) Lease Years, the
sixteenth (16th) through twentieth (20th) Lease Years, the twenty-first (21st) through twenty-fifth (25th) Lease Years and the
twenty-sixth (26th) through thirtieth (30th) Lease Years) over (b) One Billion Seventy-Five Million Eight Hundred Seventy-Five
Thousand Dollars ($1,075,875,000). For purposes of clause (a) in the preceding sentence, in determining the “average annual Net
Revenues” of 1 Jackpot during the initial trailing five-year period, the “average annual Net Revenue” shall be calculated
separately for 1 Jackpot by using the actual Net Revenues for such 1 Jackpot received during such trailing five-year period
divided by the time period during such trailing five-year period that 1 Jackpot is part of the Master Lease (with the average
annual Net Revenues for 1 Jackpot then added to the average annual Net Revenues for the remaining Facilities).
st
st
st
st
st
Percentage Rent Reset Year: The sixth (6 ) Lease Year, the eleventh (11 ) Lease Year, the sixteenth (16 ) Lease
th
th
Year, the twenty-first (21 ) Lease Year, the twenty-sixth (26 ) Lease Year and the thirty-first (31 ) Lease Year.
st
st
th
th
Permitted Leasehold Mortgage: A document creating or evidencing an encumbrance on Tenant’s leasehold interest
(or a subtenant’s sublease hold 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 that forecloses on this
Master Lease and assumes this Master Lease or a Subsidiary of a Permitted Leasehold Mortgagee 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.
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Pre-Opening Expense: With respect to any fiscal period, the amount of expenses (including Consolidated Interest
Expense) incurred with respect to capital projects which are appropriately classified as “pre-opening expenses” on the applicable
financial statements of Tenant’s Parent and its Subsidiaries for such period.
Primary Intended Use: Gaming and/or pari-mutuel use consistent, with respect to each Facility, with its current use
(as specified on Exhibit A attached hereto as it may be amended from time to time), or with prevailing gaming industry use at any
time (including all ancillary uses consistent with gaming industry practice such as hotels, restaurants, bars, etc.).
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)(v).
Prohibited Persons: As defined in Section 39.1.
Promotional Allowance: As defined in the definition of Net Revenue.
Qualified Successor Tenant: As defined in Section 36.2.
Renewal Notice: As defined in Section 1.4(a).
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.
Restricted Area: The geographical area that at any time during the Term is within (A) a seven (7) mile radius of
any Facility covered under this Master Lease at such time and located in the State of Nevada, or (B) a sixty (60) mile radius of
any Facility covered under this Master Lease at such time and located outside the State of Nevada.
Restricted Payment: Dividends (in cash, property or obligations) on, or other payments or distributions on account
of, or the setting apart of money for a sinking or other analogous fund for, or the purchase, redemption, retirement, repurchase or
other acquisition of, any Equity Interests or Equity Rights (other than outstanding securities convertible into Equity Interests) of
Tenant, but excluding dividends, payments or distributions paid through the
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issuance of additional shares of Equity Interests and any redemption, retirement or exchange of any Equity Interest through, or
with the proceeds of, the issuance of Equity Interests of Tenant.
Retail Sales: As defined in the definition of Net Revenue.
SEC: The United States Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, or any successor statute, and the rules and regulations
promulgated thereunder.
Sister Master Lease: Means that certain Master Lease dated as of the Effective Date by and between Landlord, PA
Meadows, LLC, CCR Pennsylvania Racing, LLC, Penn Tenant, LLC, Penn Cecil Maryland LLC, and PNK Development 33,
LLC, as the same may be amended, modified, or amended and restated from time to time.
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.
Specified Expenses: For any Test Period, (i) Rent incurred for the same Test Period, and (ii) the (1) income tax
expense, (2) consolidated interest expense, (3) depreciation and amortization expense, (4) any nonrecurring, unusual, or
extraordinary items of income, cost or expense, including but not limited to, (a) any gains or losses attributable to the early
extinguishment or conversion of indebtedness, (b) gains or losses on discontinued operations and asset sales, disposals or
abandonments, and (c) impairment charges or asset write-offs including, without limitation, those related to goodwill or
intangible assets, long-lived assets, and investments in debt and equity securities, in each case, pursuant to GAAP, (5) any non-
cash items of expense (other than to the extent such non-cash items of expense require an accrual or
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reserve for future cash expenses (provided that if such accrual or reserve is for contingent items, the outcome of which is subject
to uncertainty, such non-cash items of expense may, at the election of the Tenant, be added to net income and deducted when and
to the extent actually paid in cash)), (6) any Pre-Opening Expenses, (7) transaction costs for the spin-off of GLP, the entry into
this Master Lease, the negotiation and consummation of the financing transactions in connection therewith and the other
transactions contemplated in connection with the foregoing consummated on or before the date hereof, (8) non-cash valuation
adjustments, (9) any expenses related to the repurchase of stock options, and (10) expenses related to the grant of stock options,
restricted stock, or other equivalent or similar instruments; in the case of each of (1) through (10), of Tenant and the Subsidiaries
of Tenant that are Guarantors on a consolidated basis for such period.
Specified Proceeds: For any Test Period, to the extent not otherwise included in Net Revenue, the amount of
insurance proceeds received during such period by Tenant or the Guarantors in respect of any Casualty Event; provided, however,
that for purposes of this definition, (i) with respect to any Facility subject to such Casualty Event which had been in operation for
at least one complete fiscal quarter the amount of insurance proceeds plus the Net Revenue (excluding such insurance proceeds),
if any, attributable to the Facility subject to such Casualty Event for such period shall not exceed an amount equal to the Net
Revenue attributable to such Facility for the Test Period ended immediately prior to the date of such Casualty Event (calculated
on a pro forma annualized basis to the extent such Facility was not operational for the full previous Test Period) and (ii) with
respect to any Facility subject to such Casualty Event which had not been in operation for at least one complete fiscal quarter, the
amount of insurance proceeds plus the Net Revenue attributable to such Facility for such period shall not exceed the Net Revenue
reasonably projected by Tenant to be derived from such Facility for such period.
Specified Sublease: Means those subleases in effect on the Commencement Date constituting part of the Leased
Property with respect to which Tenant is a sublessor, substantially as in effect as of the Commencement Date.
State: With respect to each Facility, the state or commonwealth in which such Facility is located.
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.
Successor Tenant: As defined in Section 36.1.
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Successor Tenant Rent: As defined in Section 36.2.
Taking: As defined in Section 15.1(a).
Tenant: As defined in the preamble.
Tenant Capital Improvement: A Capital Improvement funded by Tenant, as compared to Landlord.
Tenant COC: As defined in Section 22.2(iii).
Tenant Parent COC: As defined in Section 22.2(iii).
Tenant Representatives: As defined in Section 23.4.
Tenant’s Parent: Penn Entertainment, Inc.
Tenant’s Property: With respect to each Facility, all assets (other than the Leased Property and property owned by
a third party) 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.
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.
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 taking by 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.
ARTICLE III
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
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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 is payable in advance in consecutive monthly
installments on the fifth (5th) Business Day of each calendar month during that Lease Year; provided that during the first three
(3) months of each Percentage Rent Reset Year the amount of the Percentage Rent payable monthly in advance shall remain the
same as in the then preceding Lease Year, and provided, further, that Tenant shall make a payment to Landlord (or be entitled to
set off against its Rent payment due) on the fifth (5th) Business Day of the fourth (4th) calendar month of such Lease Year in the
amount necessary to “true-up” any Percentage Rent payments not yet (or overpayments having been) made for such three (3)
month period; provided, further, that Tenant shall be entitled to set off against a Rent payment due hereunder any rent payments
made by Tenant’s Parent or one of its 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. The
parties will agree on an allocation of the Base Rent on a declining basis for federal income tax purposes within the 115/85 safe
harbor of Section 467 of the Code, assuming a projected schedule of Base Rent for this purpose.
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) five percent (5%) 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.
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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 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.
ARTICLE IV
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 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 GLP 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
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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 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 the 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.
(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. 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 without
Tenant’s consent, which shall not be unreasonably withheld (it being understood that it shall not be reasonable to withhold
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consent to encumbrances that do not adversely affect the use or future development of the Facility as a Gaming Facility 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);
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 or a default by Tenant of Section 23.3(b) hereof (to be exercised by thirty (30) days’ written notice to Tenant); and
provided Tenant is not already being required to impound such payments in accordance with the requirements of Section 31.3(b)
below, 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.
ARTICLE V
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 that may now or hereafter be conferred upon it by law (a) to modify, surrender or terminate this Master
Lease or quit or surrender the
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Leased Property or any portion thereof, or (b) that 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.
ARTICLE VI
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 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
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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, (y) Tenant reporting its Rent 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 shall, during the entire Term, own (or lease) and maintain (or cause its
Subsidiaries to own (or lease) and maintain) on the Leased Property adequate and sufficient Tenant’s Property, and shall maintain
(or cause its Subsidiaries to maintain) all of such Tenant’s Property in good order, condition and repair, in all cases as shall be
necessary and appropriate in order to operate the Facilities for the Primary Intended Use in compliance with all applicable
licensure and certification requirements and in compliance with all applicable Legal Requirements, Insurance Requirements and
Gaming Regulations. If any of Tenant’s Property requires replacement in order to comply with the foregoing, Tenant shall replace
(or cause a Subsidiary to replace) it with similar property of the same or better quality at Tenant’s (or such Subsidiary’s) sole cost
and expense. Subject to the foregoing, Tenant and its Subsidiaries may sell, transfer, convey or otherwise dispose of Tenant’s
Property (other than Gaming Licenses and subject to Section 6.3) in their discretion in the ordinary course of its business and
Landlord shall have no rights to such Tenant’s Property. Tenant shall, upon Landlord’s request, from time to time but not more
frequently than one time per Lease Year, provide Landlord with a list of the material Tenant’s Property located at each of the
Facilities. In
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the case of any such Tenant’s Property that is leased (rather than owned) by Tenant (or its Subsidiaries), Tenant shall use
commercially reasonable efforts to ensure that the lease agreements pursuant to which Tenant (or its Subsidiaries) leases such
Tenant’s Property are assignable to third parties in connection with any transfer by Tenant (or its Subsidiaries) to a replacement
lessee or operator at the end of the Term. Tenant shall remove all of Tenant’s Property from the Leased Property at the end of the
Term, except to the extent Tenant has transferred ownership of such Tenant’s Property to a Successor Tenant or Landlord. Any
Tenant’s Property left on the Leased Property at the end of the Term whose ownership was not transferred to a Successor Tenant
shall be deemed abandoned by Tenant and shall become the property of Landlord.
6.3 Guarantors; Tenant’s Property. Each of Tenant’s Parent and each of Tenant’s Subsidiaries set forth on
Schedule 6.3 shall be a Guarantor under this Agreement and shall execute and deliver to the Landlord the Guaranty attached
hereto as Exhibit E. In addition, if any material Gaming License or other license or other material asset necessary to operate any
portion of the Leased Property is owned by a Subsidiary, Tenant shall within two (2) Business Days after the date such Subsidiary
acquires such Gaming License, other license or other material asset, (a) notify the Landlord thereof and (b) cause such Subsidiary
(if it is not already a Guarantor) to become a Guarantor by executing the Guaranty in form and substance reasonably satisfactory
to Landlord; provided that this sentence shall not apply to Belle of Sioux City, L.P. and Iowa Gaming Company, LLC, and
notwithstanding anything to the contrary contained herein, Belle of Sioux City, L.P. and Iowa Gaming Company, LLC shall not
be required to become party to the Guaranty.
ARTICLE VII
7.1 Condition of the Leased Property. Tenant acknowledges receipt and delivery of possession of the Leased
Property prior to the Commencement Date and confirms that Tenant has examined and has knowledge of the condition of the
Leased Property prior to the execution and delivery of this Master Lease and has found the same (except as included in the
disclosures on Schedule 1A) 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 and Tenant shall be solely responsible for all costs
and expenses relating thereto, including, but not limited to, Tenant’s the obligation, to repair any condition in existence on the
Effective Date. 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
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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 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 withhold in its sole discretion. Landlord acknowledges that operation of each Facility for its Primary Intended Use
generally requires a Gaming License under applicable Gaming Regulations and that without such a license neither Landlord nor
GLP may operate, control or participate in the conduct of the gaming and/or racing operations at the Facilities.
(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 Property to be used as a Gaming Facility after the expiration or earlier
termination of the Term.
(c) Tenant shall neither suffer nor permit the Leased Property or any portion thereof to be used in such a manner
as (i) might reasonably tend to impair Landlord’s title thereto or to any portion thereof or (ii) may make possible a claim of
adverse use or possession, or an implied dedication of the Leased Property or any portion thereof.
(d) Except in instances of casualty or condemnation, Tenant shall continuously operate each of the Facilities for
the Primary Intended Use. Tenant in its discretion shall be permitted to cease operations at a Facility or Facilities if such cessation
would not 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 following conditions are satisfied: (i) no Event of Default has occurred and is continuing immediately
prior to or immediately after the date that operations are ceased or as a result of such cessation; and (ii) when calculating the
Percentage Rent due, the Net Revenue for each and every such Facility whose operations have permanently ceased shall in the
year of such cessation, and for each year thereafter, be equal to the Net Revenue for such Facility for the calendar year immediate
prior to the year in which the Facility permanently ceased its operations.
7.3 Reserved.
7.4 Competing Business.
(a) Tenant’s Obligations for Greenfields. Tenant agrees that during the Term neither Tenant nor any of its
Affiliates shall build or otherwise participate in the development of a new Gaming Facility (including a facility that has been shut
down for a period of more than twelve (12) months) (a “Greenfield Project”) within a Restricted Area of a Facility (the Facility
in whose Restricted Area there is activity under this Section 7.4, an “Affected Facility”), unless Tenant shall first offer Landlord
the opportunity to include the Greenfield Project as a Leased
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Property under this Master Lease on terms to be negotiated by the parties (which terms with respect to Landlord funding such
development shall include the terms set forth in Section 10.3 hereof regarding Capital Improvements). Within thirty (30) days of
Landlord’s receipt of notice from Tenant providing the opportunity to fund and include as Leased Property under this Master
Lease a Greenfield Project on terms to be negotiated by the parties, Landlord shall notify Tenant as to whether it intends to
participate in such Greenfield Project and, if Landlord indicates such intent, the parties shall negotiate in good faith the terms and
conditions upon which this would be effected, including the terms of any amendment to this Master Lease and any development
or funding agreement, which Landlord might require. Should Landlord notify Tenant that it does not intend to pursue such
Greenfield Project (or should Landlord decline to notify Tenant of its affirmative response within such thirty (30) day period), or
if the parties despite good faith efforts on both sides fail to reach agreement on the terms under which such opportunity would be
jointly pursued under this Master Lease and such new Greenfield Project would become a portion of the Leased Property
hereunder, in any event, within forty-five (45) days after Landlord’s notice to Tenant of Landlord’s intent to participate in such
Greenfield Project, then (a) for each and every Affected Facility the Net Revenue when used in the calculation of Percentage
Rent will thereafter subject to a floor, which floor shall be based on the Net Revenue for such Affected Facility for the calendar
year immediately prior to the year in which the Greenfield Project is first opened to the public (the “Greenfield Floor”), (b)
thereafter when calculating Percentage Rent, the Net Revenue for such Affected Facility shall be equal to the greater of (i) the
actual Net Revenue derived from such Affected Facility for the applicable calculation period, and (ii) the Greenfield Floor, and (
c) for the avoidance of doubt, Percentage Rent shall be subject to normal periodic adjustments each Percentage Rent Reset Year
and in accordance with Section 14.6; provided that the Net Revenue for the Affected Facility may not be reduced below the
Greenfield Floor. Notwithstanding anything to the contrary in this Section 7.4(a), Tenant and its Affiliates shall not be restricted
under this Section 7.4(a) from (i) expanding any Facility under this Master Lease (subject to Tenant’s compliance with the terms
of Section 10.3 and the other provisions of Article X), and (ii) subject to compliance with the provisions of Section 7.4(e) hereof,
acquiring or operating any competing Gaming Facility that is in operation at the time of its acquisition or operation by Tenant or
its Affiliates.
(b) Landlord’s Obligations for Greenfields. Landlord agrees that during the Term, neither Landlord nor any of its
Affiliates shall, without the prior written consent of the Tenant (which consent may be withheld in Tenant’s sole discretion), build
or otherwise participate in the development of a Greenfield Project within the Restricted Area. Notwithstanding anything to the
contrary in this Section 7.4(b), (i) Landlord and its Affiliates shall not be restricted under this Section 7(b) from acquiring,
financing or providing refinancing for any facility that is in operation or has been in operation at any time during the twelve
month period prior to the time in question, and (ii) subject to the provisions of Section 7.4(d) hereof, Landlord and its Affiliates
shall not be restricted under this Section 7.4(b) from expanding any Competing Facility existing at the time in question.
(c) Tenant’s Rights Regarding Facility Expansions. Tenant shall be permitted to construct Capital Improvements
in accordance with the terms of Article X hereof.
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(d) Landlord’s Rights Regarding Facility Expansions. Landlord shall be permitted to finance expansions of any
Competing Facility within the Restricted Area that is already existing at any time in question, provided that the Percentage Rent
attributable to any Affected Facilities shall thereafter be calculated monthly (and not based on the trailing five-year period as
would have otherwise been the case for Facilities).
(e) Tenant’s Rights to Acquire or Operate Existing Facilities. In the event Tenant or its Affiliate acquires or
operates any existing competing Gaming Facility within the Restricted Area (a “Competing Facility”), (a) for each and every
Affected Facility the Net Revenue derived from such Affected Facility when used in the calculation of Percentage Rent will
thereafter be subject to a floor, which floor shall be based on the Net Revenue for such Affected Facility for the calendar year
immediately prior to the year in which the Competing Facility is acquired or first operated by Tenant or its Affiliate (the
“Competing Facility Floor”), (b) thereafter when calculating Percentage Rent, the Net Revenue for such Affected Facility shall
be equal to the greater of (i) the actual Net Revenue derived from such Affected Facility for the applicable calculation period, and
(ii) the Competing Facility Floor, and (c) for the avoidance of doubt, Percentage Rent shall be subject to normal periodic
adjustments each Percentage Rent Reset Year and in accordance with Section 14.6; provided that the Net Revenue for the
Affected Facility may not be reduced below the Competing Facility Floor.
(f) Landlord’s Rights to Acquire or Finance Existing Facilities. Landlord shall not be restricted under this
Section 7.4 from acquiring or providing any kind of financing or refinancing to any Competing Facility within the Restricted
Area that is already existing at any time in question.
(g) No Restrictions Outside of Restricted Area. Each of Landlord and Tenant shall not be restricted from
participating in opportunities, including, without limitation, developing, building, purchasing or operating Gaming Facilities,
outside the Restricted Area at any time.
(h) Morgantown, York and PNRC.
(i) Tenant notified Landlord of its intention to develop two new Gaming Facilities - Hollywood Casino
Morgantown in Morgantown, Pennsylvania ("Morgantown") and Hollywood Casino York in York, Pennsylvania
("York"), each of which is located within sixty (60) miles from that Facility commonly known as Hollywood
Casino Penn National Race Course located in Grantville, Pennsylvania ("PNRC"). Pursuant to Section 7.4(a),
York and Morgantown each constitute a "Greenfield Project" in which Landlord has declined to participate and
PNRC is an "Affected Facility".
(ii) As a result thereof, the Net Revenue for PNRC used in the calculation of Percentage Rent due
hereunder shall be subject to a “Greenfield Floor” which shall be the greater of (i) an amount equal to the
annualized Net Revenues for PNRC based upon the Net Revenues for PNRC for the period (a) commencing on the
later of January 1, 2021 and the first date in 2021 that PNRC is open to the public and (b) ending (and including)
on the Opening Date, and (ii)
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the Greenfield Floor calculated in accordance with Section 7.4(a) of this Master Lease. Percentage Rent shall
remain subject to normal periodic adjustments in accordance with the terms of the Master Lease, but the annual
Net Revenue derived from PNRC for purposes of calculating Percentage Rent may not be reduced below the
Greenfield Floor.
(iii) Notwithstanding the foregoing, to the extent permitted by applicable Legal Requirements and as
permitted by a private letter ruling from the Internal Revenue Service when calculating the Escalation for any
Lease Year for which the Greenfield Floor for PNRC is greater than the actual PNRC Net Revenues the
calculation of the Adjusted Revenue to Rent Ratio (i) shall exclude any Adjusted Revenue received from PNRC
during the applicable period for purposes of "Adjusted Revenue", and (ii) the term "Rent" shall mean the Rent
minus the PNRC Rent for such Lease Year. For purposes hereof, the "PNRC Rent" for any Lease Year shall be
an amount equal to (x) $21,066,000 of Building Base Rent, which amount shall increase each Lease Year by the
Escalation in accordance with the Master Lease other than for any Lease Year in which the Greenfield Floor is
greater than the actual PNRC Net Revenues, plus (y) $6,294,000 of Land Base Rent plus (z) the Percentage Rent
attributable to PNRC when calculated using the Greenfield Floor as determined in Section 7.4(h)(ii) above. For the
avoidance of doubt, each Lease Year the full Building Base Rent (inclusive of any portion of the PNRC Rent
attributable to Building Base Rent) shall increase in accordance with the provisions of the Master Lease and for
any Lease Year in which the Escalation is calculated pursuant to this Section 7.4(h)(iii), the Building Base Rent
shall increase to an annual amount equal to the sum of (x) the full Building Base Rent for the immediately
preceding Lease Year (inclusive of any portion of the PNRC Rent attributable to Building Base Rent) and (y) the
Escalation as calculated in accordance with this Section 7.4(h).
ARTICLE VIII
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.
8.2 Compliance with Legal and Insurance Requirements, etc. 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
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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 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, enter upon the Leased Property and take such reasonable actions and incur such reasonable costs and
expenses to effect such compliance as it 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 regulatory
agency, commission, board or other governmental body notifies Tenant that it is in jeopardy of losing a Gaming License material
to 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 the regulatory issue, after which period (but in all events prior to an actual revocation of such Gaming
License) Tenant shall be required to sell the Gaming License and Tenant’s Property related to such Facility to a successor
operator of such Facility determined by Landlord choosing one and Tenant choosing three (for a total of four) potential operators
and Landlord indicating the reasonable, market terms under which it would agree to lease such Facility to such potential
operators, which in Landlord’s reasonable discretion may contain reasonable variations in terms to the extent required to account
for credit quality differences among the potential operators (e.g., Landlord may require different letter of credit terms and
amounts, but may not set different rent terms). Tenant will then be entitled to auction off Tenant’s Property relating to such
Facility and Landlord will thereafter be entitled to lease the Facility to the potential successor that is the successful bidder. In the
event of a new lease from Landlord to the successor, the Leased Property relating to such Facility shall be severed from the
Leased Property hereunder and thereafter Rent shall be reduced based on the formula set forth in Section 14.6 hereof. Landlord
shall comply with any Gaming Regulations or other regulatory requirements required of it as owner of the Facilities taking into
account its Primary Intended Use (except to the extent Tenant fulfills or is required to fulfill any such requirements hereunder). In
the event that a regulatory agency, commission, board or other governmental body 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 shall be entitled to be one of the bidders) who would agree to lease such Facility to
Tenant on terms substantially the same as the terms hereof (including rent calculated in the manner provided pursuant to Section
14.6 hereof, an identical amount of which, after the effective time of such sale, shall be credited against Rent hereunder);
provided that if
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Tenant is the bidder it shall not be required to agree to lease the Facility, but if it is the winning bidder shall be entitled to a credit
against the Rent hereunder calculated in the manner provided pursuant to Section 14.6. In the event during the period in which
Landlord conducts such auction such 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 for its Primary
Intended Use shall be affected 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, which shall not be unreasonably withheld
unless the action for which consent is sought could adversely affect the Primary Intended Use of a Facility (in which event
Landlord may withhold its consent in its sole and absolute discretion), Tenant shall not (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 or use or permit the use of the Leased Property; (iii) impose or permit or suffer the
imposition of any restrictive covenants, easements or encumbrances (other than Permitted Leasehold Mortgages) upon the Leased
Property in any manner that adversely affects in any material respect the value or utility of 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 in such
manner as might make possible a claim of adverse usage or possession or of any implied dedication or easement (provided that
the proscription in this clause (v) is not intended to and shall not restrict Tenant in any way from complying with any obligation it
may have under applicable Legal Requirements, including, without limitation, Gaming Regulations, to afford to the public access
to the Leased Property).
8.4 Compliance with Ground Lease.
(a) This Master Lease, to the extent affecting and solely with respect to the Ground Leased Property, is and shall
be subject and subordinate to all of the terms and conditions of the Ground Lease. Tenant hereby acknowledges that Tenant has
reviewed and agreed to all of the terms and conditions of the Ground Lease. Tenant hereby agrees that Tenant shall not do, or fail
to do, anything that would cause any violation of the Ground Lease. Without limiting the foregoing, (i) to the extent Landlord is
required to obtain the written consent of the lessor under the Ground Lease (the “Ground Lessor”) to alterations of or the
subleasing of all or any portion of the Ground Leased Property pursuant to the Ground Lease, Tenant shall likewise obtain
Ground Lessor’s written consent to alterations of or the subleasing of all or any portion of the Ground Leased Property, and (ii)
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
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Landlord as tenant under the Ground Lease. Notwithstanding anything to the contrary contained herein, with respect to those
Ground Leases associated with 1 Jackpot, the Tenant shall pay all rent due thereunder.
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(b) In the event of cancellation or termination of the 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 Ground Lessor’s option, Tenant shall make full and complete attornment to Ground Lessor
with respect to the obligations of Landlord to Ground Lessor in connection with the Ground Leased Property for the balance of
the term of the Lease (notwithstanding that this Master Lease shall have expired with respect to the Ground Leased Property as a
result of the cancellation or termination of the Ground Lease). Tenant’s attornment shall be evidenced by a written agreement
which shall provide that the Tenant is in direct privity of contract with Ground Lessor (i.e., that all obligations previously owed to
Landlord under this Master Lease with respect to the Ground Lease or the Ground Leased Property shall be obligations owed to
Ground Lessor for the balance of the term of this Master Lease, notwithstanding that this Master Lease shall have expired with
respect to the Ground Leased Property as a result of the cancellation or termination of the Ground Lease) and which shall
otherwise be in form and substance reasonably satisfactory to Ground Lessor. Tenant shall execute and deliver such written
attornment within thirty (30) days after request by 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 Ground Lessor and Tenant.
(c) Nothing contained in this Master Lease amends, or shall be construed to amend, any provision of the Ground
Lease.
ARTICLE IX
9.1 Maintenance and Repair. (a) Tenant, at its expense and without the prior consent of Landlord, shall
maintain the Leased Property and Tenant’s Property, and every portion thereof, and all private roadways, sidewalks and curbs
appurtenant to the Leased Property, and which are under Tenant’s control in good order and repair whether or not the need for
such repairs occurs as a result of Tenant’s use, any prior use, the elements or the age of the Leased Property and Tenant’s
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. All repairs shall be at least equivalent in quality to the original work. Tenant will not take or omit to
take any action the taking or omission of which would reasonably be expected to materially impair the value or the usefulness of
the Leased Property or any part thereof or any Capital Improvement thereto for its Primary Intended Use.
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(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) 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.
(e) Without limiting Tenant’s obligations to maintain the Leased Property and Tenant’s Property under this
Master Lease, within thirty (30) days after the end of each calendar year, 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 its actual Net
Revenue 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 number of expenditures and fails within sixty (60) days
after receipt of a written demand 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 an
Event of 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
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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) (collectively, “Claims”) based on or arising by reason of any such encroachment, violation or impairment; provided,
however, Landlord shall have no obligation to protect, indemnify, save harmless or defend Tenant from or against any Claims
with respect to any encroachment, violation or impairment that resulted from the acts or omissions of Tenant or its employees,
agents and contractors which occurred on or after the Commencement Date (any such encroachment, violation or impairment
being a “Tenant Encroachment”). 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 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 (other than with respect to any Tenant
Encroachment, which shall be at Tenant’s sole cost and expense) 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 (other than any Tenant Encroachment), 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 Claims based on or arising by reason of any such encroachment, violation or impairment (other than a Tenant
Encroachment) as set forth in this Section 9.2; 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
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made available by Tenant, including, but not limited to, the mutual approval of a litigation budget.
ARTICLE X
10.1 Construction of Capital Improvements to the Leased Property. Tenant shall, with respect to any
Facility, have the right to make a Capital Improvement, including, without limitation, any Capital Improvement required by
Section 8.2 or 9.1(a), without the consent of Landlord if the Capital Improvement (i) is of equal or better quality than the existing
Leased Improvements it is improving, altering or modifying, (ii) does not consist of adding new structures or enlarging existing
structures, and (iii) does not have an adverse effect on the structure of any existing Leased Improvements. Tenant shall provide
Landlord copies of the plans and specifications in respect of all Capital Improvements, which plans and specifications shall be
prepared in a high-grade professional manner and shall adequately demonstrate compliance with clauses (i)-(iii) of the preceding
sentence with respect to projects that do not require Landlord’s written consent and shall be in such form as Landlord may
reasonably require for any other projects. All other Capital Improvements shall be subject to Landlord’s review and approval,
which approval shall not be unreasonably withheld. For any Capital Improvement which does not require the approval of
Landlord, Tenant shall, prior to commencing construction of such Capital Improvement, provide to Landlord a written description
of such Capital Improvement and on an ongoing basis supply Landlord with related documentation and information as Landlord
may reasonably request (including plans and specifications of any such Capital Improvements). If Tenant desires to make a
Capital Improvement for which Landlord’s approval is required, 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. It shall be reasonable for Landlord to condition its approval of any Capital Improvement upon any or
all of the following terms and conditions:
(a) Such construction shall be effected pursuant to detailed plans and specifications approved by Landlord,
which approval shall not be unreasonably withheld;
(b) Such construction shall be conducted under the supervision of a licensed architect or engineer selected by
Tenant and approved by Landlord, which approval shall not be unreasonably withheld;
(c) Landlord’s receipt, from the general contractor and, if reasonably requested by Landlord, a major
subcontractor(s) of a performance and payment bond for the full value of such construction, which such bond shall name
Landlord as an additional obligee and otherwise be in form and substance and issued by a Person reasonably satisfactory to
Landlord;
(d) In the case of a Tenant Capital Improvement, such construction shall not be undertaken unless Tenant
demonstrates to the reasonable satisfaction of Landlord the financial
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ability to complete the construction without adversely affecting its cash flow position or financial viability; and
(e) No Capital Improvement will result in the Leased Property becoming a “limited use” property for purposes
of United States federal income taxes.
10.2 Construction Requirements for All Capital Improvements. Whether or not Landlord’s review and
approval is required, for all Capital Improvements:
(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 which require the approval of Landlord
as hereinabove provided shall have been so approved by Landlord;
(b) Such construction shall not, and, if such Capital Improvement is of a type that would reasonably be expected
to require the services of an architect or engineer in connection with customary construction practices for projects of a similar
size, scope and complexity, Tenant’s licensed architect or engineer shall certify to Landlord that such architect or engineer
believes that 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) If such Capital Improvement is of a type that would reasonably be expected to require the services of an
architect or engineer in connection with customary construction practices for projects of a similar size, scope and complexity,
Tenant’s licensed architect or engineer shall certify to Landlord that such architect or engineer believes that the detailed plans and
specifications conform to, and comply with, in all material respects all applicable building, subdivision and zoning codes, laws,
ordinances and regulations imposed by all governmental authorities having jurisdiction over the Leased Property of the
applicable Facility;
(d) 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, with Landlord’s prior consent and at no additional expense to Landlord, (i) to the extent additional
parking is not already a part of a Capital Improvement, Tenant may construct additional parking on the Land; or (ii) 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;
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(e) All work done in connection with such construction shall be done promptly 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 minority or women owned business requirements; and
(f) Promptly following the completion of such construction, Tenant shall deliver to Landlord “as built” drawings
of such addition, certified as accurate by the licensed architect or engineer selected by Tenant to supervise such work, unless such
Capital Improvements have not resulted in any changes to the previously delivered “as built” drawings, and copies of any new or
revised certificates of occupancy.
10.3 Landlord’s Right of First Offer to Fund. Tenant shall request that Landlord fund or finance the
construction and acquisition of any Capital Improvement that includes Long-Lived Assets (along with reasonably related fees and
expenses, such as title fees, costs of permits, legal fees and other similar transaction related costs) if the cost of such Capital
Improvements constituting Long-Lived Assets is expected to be in excess of $2 million (subject to the CPI Increase), and Tenant
shall provide to Landlord any information about such Capital Improvements which Landlord may reasonably request (including
any specifics regarding the terms upon which Tenant will be seeking financing for such Capital Improvements). Landlord may,
but shall be under no obligation to, provide the funds necessary to meet the request. Within thirty (30) days of receipt of a request
to fund a proposed Capital Improvement pursuant to this Section 10.3, Landlord shall notify Tenant as to whether it will fund all
or a portion of such proposed Capital Improvement and, if so, the terms and conditions upon which it would do so. If Landlord
agrees to fund such proposed Capital Improvement, Tenant shall have ten (10) Business Days to accept or reject Landlord’s
funding proposal. If Landlord declines to fund a proposed Capital Improvement (or declines to provide Tenant written notice
within such thirty (30)-day period of the terms of its proposal to fund such Capital Improvements), Tenant shall be permitted to
secure outside financing or utilize then existing available financing for such Capital Improvement for a six-month period, after
which six-month period (if Tenant has not secured outside financing or determined to utilize then existing available financing)
Tenant shall again be required to first seek funding from Landlord. If Landlord agrees to fund all or a portion of a proposed
Capital Improvement and Tenant rejects the terms thereof, Tenant shall be permitted to either use then existing available
financing or seek outside financing for such Capital Improvement for a six-month period, in each case on terms that are
economically more advantageous to Tenant than offered under Landlord’s funding proposal, and if Tenant elects to utilize
economically more advantageous financing it shall provide Landlord evidence of the terms of such financing; provided that, in
determining if financing is economically more advantageous (i) consideration may be given to, among other items, (x) pricing,
amortization, and length of term of such financing; (y) the cost, availability and terms of any financing sufficient to fund such
Capital Improvement and other expenditures (exclusive of the related fees and expense described above) material in relation to
the cost of such Capital Improvement (if any) which are intended to be funded in connection with the construction and
acquisition of such Capital Improvement and which are related to the use and operation of such Capital Improvement and (z), and
other customary considerations and, (ii) in the event that Tenant uses
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Cash to fund such Capital Improvement Costs, such use of Cash shall be deemed to have financing terms equivalent to those of
the then outstanding Indebtedness of the Tenant having the highest rate of interest which is then permitted to be repaid, factoring
in any related call or prepayment premium (to the extent any such Indebtedness of the Tenant is then outstanding); and provided,
further, that in no event shall Tenant be obligated to obtain financing from Landlord to the extent such financing from Landlord
would violate or cause a default or breach under any Material Indebtedness of Tenant’s Parent or Tenant. If Tenant constructs a
Capital Improvement with its then existing available financing or outside financing obtained in accordance with this Section 10.3,
(i) except as may otherwise be expressly provided in this Master Lease to the contrary, (A) during the Term, such Capital
Improvements shall be deemed part of the Leased Property and the Facilities solely for the purpose of calculating Net Revenues
and Percentage Rent hereunder and shall for all other purposes be Tenant’s Property and (B) following expiration or termination
of the Term, shall be either, at the option of Landlord, purchased by Landlord for fair market value or, if not purchased by
Landlord, Tenant shall be entitled to either remove such Tenant Capital Improvements, provided that the Leased Property is
restored in a manner reasonably satisfactory to Landlord, or receive fair value for such Tenant Capital Improvements in
accordance with Article XXXVI. If Landlord agrees to fund a proposed
Capital Improvement and Tenant accepts the terms thereof, such Capital Improvements shall be deemed part of the Leased
Property and the Facilities for all purposes and Tenant shall provide Landlord with the following prior to any advance of funds:
(a) any information, certificates, licenses, permits or documents reasonably requested by Landlord which are
necessary and obtainable to confirm that Tenant will be able to use the Capital Improvement upon completion thereof in
accordance with the Primary Intended Use, including all required federal, state or local government licenses and approvals;
(b) an Officer’s Certificate and, if requested, a certificate from Tenant’s architect providing appropriate backup
information, setting forth in reasonable detail the projected or actual costs related to such Capital Improvements;
(c) an amendment to this Master Lease (and any development or funding agreement agreed to in accordance
with this Section 10.3), in a form reasonably agreed to by Landlord and Tenant, which may include, among other things, an
increase in the Rent in amounts as agreed upon by the parties hereto pursuant to the agreed funding proposal terms described
above and other provisions as may be necessary or appropriate;
(d) a deed conveying title to Landlord to any land acquired for the purpose of constructing the Capital
Improvement free and clear of any liens or encumbrances except those approved by Landlord, and accompanied by an ALTA
survey thereof satisfactory to Landlord;
(e) for each advance, endorsements to any outstanding policy of title insurance covering the Leased Property or
commitments therefor reasonably satisfactory in form and substance to Landlord (i) updating the same without any additional
exception except those that do not materially affect the value of such land and do not interfere with the use of the Leased Property
or as may be approved by Landlord, which approval shall not be unreasonably withheld, and (ii) increasing the coverage thereof
by an amount equal to the cost of the Capital
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Improvement, except to the extent covered by the owner’s policy of title insurance referred to in subparagraph (f) below;
(f) if appropriate, an owner’s policy of title insurance insuring the fair market value of fee simple title to any
land and improvements conveyed to Landlord free and clear of all liens and encumbrances except those that do not materially
affect the value of such land and do not interfere with the use of the Leased Property or are approved by Landlord, which
approval shall not be unreasonably withheld, provided that if the requirement in this paragraph (f) is not satisfied (or waived by
Landlord), Tenant shall be entitled to seek third party financing or use available financing in lieu of seeking such advance from
Landlord;
(g) if requested by Landlord, an appraisal by a member of the Appraisal Institute of the Leased Property
indicating that the fair market value of the Leased Property upon completion of the Capital Improvement will exceed the fair
market value of the Leased Property immediately prior thereto by an amount not less than ninety-five percent (95%) of the cost
of the Capital Improvement, provided that if the requirement in this paragraph (g) is not satisfied (or waived by Landlord), Tenant
shall be entitled to seek third party financing or use available financing in lieu of seeking such advance from Landlord; and
(h) such other billing statements, invoices, certificates, endorsements, opinions, site assessments, surveys,
resolutions, ratifications, lien releases and waivers and other instruments and information reasonably required by Landlord.
ARTICLE XI
11.1 Liens. Subject to the provisions of Article XII relating to permitted contests, Tenant will not directly or
indirectly create or allow to remain and will promptly discharge at its expense any lien, encumbrance, attachment, title retention
agreement or claim upon the Leased Property (including, Landlord’s fee simple interest therein) 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) or any attachment, levy, claim or encumbrance in respect of the Rent, excluding, however, (i)
this Master Lease; (ii) the matters that existed as of the Commencement Date with respect to such Facility and disclosed on
Schedule 1A; (iii) restrictions, liens and other encumbrances which are consented to in writing by Landlord (such consent not to
be unreasonably withheld); (iv) liens for Impositions which Tenant is not required to pay hereunder; (v) subleases permitted by
Article XXII; (vi) liens for Impositions not yet delinquent or being contested in accordance with Article XII, provided that Tenant
has provided appropriate reserves as required under GAAP and any foreclosure or similar remedies with respect to such
Impositions have not been instituted and no notice as to the institution or commencement thereof has been issued except to the
extent such institution or commencement is stayed no later than the earlier of (x) ten (10) Business Days after such notice is
issued or (y) five (5) Business Days prior to the institution or commencement thereof; (vii) liens of mechanics, laborers,
materialmen, suppliers or vendors for sums either disputed or not yet due, provided that (1) the payment of such sums shall not be
postponed under any related contract for more than sixty (60) days after the completion of the action giving rise to such lien
unless being contested in accordance with Article XII and such reserve or other
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appropriate provisions as shall be required by law or GAAP shall have been made therefor and no foreclosure or similar remedies
with respect to such liens has been instituted and no notice as to the institution or commencement thereof have been issued except
to the extent such institution or commencement is stayed no later than the earlier of (x) ten (10) Business Days after such notice
is issued or (y) five (5) Business Days prior to the institution or commencement thereof; or (2) any such liens are in the process of
being contested as permitted by Article XII; (viii) any liens created by Landlord; (ix) 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, provided that
the payment of any sums due under such equipment leases or equipment financing shall either (1) be paid as and when due in
accordance with the terms thereof, or (2) be in the process of being contested as permitted by Article XII and provided that a lien
holder’s removal of any such Tenant’s Property from the Leased Property shall be made in accordance with the requirements set
forth in this Section 11.1; (x) liens granted as security for the obligations of Tenant and its Affiliates under a Debt Agreement;
provided, however, in no event shall the foregoing be deemed or construed to permit Tenant to encumber (a) 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) 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 or (b) Landlord’s fee simple interest in the Leased Property; and (xi) 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.
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 (except to the extent contemplated in the final paragraph of this Section 11.1) 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 Change in 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 equipment 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 granted a
Permitted Leasehold Mortgage 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) slot machines and other gaming equipment even if the removal
thereof from the Leased Property could result in de
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minimis damage; provided any such damage is repaired by the lien holder or Tenant in accordance with the terms of this Master
Lease.
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 shall be treated as an operating lease for all purposes and not as a synthetic lease, financing lease or loan
and that Landlord shall be entitled to all the benefits of ownership of the Leased Property, including depreciation for all federal,
state and local tax purposes.
If, notwithstanding (a) the form and substance of this Master Lease and (b) the intent of the parties, and the
language contained herein providing that this Master Lease shall at all times be construed, interpreted and applied to create an
indivisible lease of all of the Leased Property, any court of competent jurisdiction finds that this Master Lease is a financing
arrangement, this Master Lease shall be considered a secured financing agreement and Landlord’s title to the Leased Property
shall constitute a perfected first priority lien in Landlord’s favor on the Leased Property to secure the payment and performance
of all the obligations of Tenant hereunder (and to that end, Tenant hereby grants, assigns and transfers to the Landlord a security
interest in all right, title or interest in or to any and all of the Leased Property, as security for the prompt and complete payment
and performance when due of Tenant’s obligations hereunder). Tenant authorizes Landlord, at the expense of Tenant, to make any
filings or take other actions as Landlord reasonably determines are necessary or advisable in order to effect fully this Master
Lease or to more fully perfect or renew the rights of the Landlord, and to subordinate to the Landlord the lien of any Permitted
Leasehold Mortgagee, with respect to the Leased Property (it being understood that nothing herein shall affect the rights of a
Permitted Leasehold Mortgagee under Article XVII hereof). At any time and from time to time upon the request of the Landlord,
and at the expense of the Tenant, Tenant shall promptly execute, acknowledge and deliver such further documents and do such
other acts as the Landlord may reasonably request in order to effect fully this Master Lease or to more fully perfect or renew the
rights of the Landlord with respect to the Leased Property. Upon the exercise by the Landlord 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 will execute and deliver, or will cause the execution and delivery of, all applications,
certifications, instruments and other documents and papers that Landlord may be required to obtain from Tenant for such consent,
approval, recording, qualification or authorization.
ARTICLE XII
12.1 Permitted Contests. Tenant, upon prior written 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, lien, attachment, levy, encumbrance,
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charge or claim; provided, however, that (i) in the case of an unpaid Imposition, lien, attachment, levy, encumbrance, charge or
claim, the commencement and continuation of such proceedings shall suspend the collection thereof from Landlord and from the
Leased Property or any Capital Improvement thereto; (ii) neither the Leased Property or any Capital Improvement thereto, the
Rent therefrom nor any part or interest in either thereof would be in any danger of being sold, forfeited, attached or lost pending
the outcome of such proceedings; (iii) in the case of a Legal Requirement, neither Landlord nor Tenant would be in any danger of
civil or criminal liability for failure to comply therewith pending the outcome of such proceedings; (iv) if any such contest shall
involve a sum of money or potential loss in excess of Two Hundred Thousand Dollars ($200,000), upon request of the Landlord,
Tenant shall deliver to Landlord an opinion of counsel reasonably acceptable to Landlord to the effect set forth in clauses (i), (ii)
and (iii) above, to the extent applicable; (v) in the case of a Legal Requirement, Imposition, lien, encumbrance or charge, 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; (vi) in the case of an Insurance Requirement, the coverage required by Article XIII shall be maintained;
(vii) Tenant shall keep Landlord reasonably informed as to the status of the proceedings; and (viii) 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 written notice to Landlord of Tenant’s preference that Landlord not join in such proceeding.
ARTICLE XIII
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 third party liability type policies must
name Landlord as an “additional insured.” All property policies shall name Landlord as “loss payee” for its interests in each
Facility. 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
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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 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 Five Million Dollars
($5,000,000) in which event no consent shall be required. Evidence of insurance shall be deposited with Landlord and, if
requested, with any 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 and windstorm in an amount not less than the insurable value on a Maximum Foreseeable Loss (as defined below in
Section 13.2) basis and including a building ordinance coverage endorsement, provided that in the event the premium cost of any
or all of earthquake, flood, windstorm (including named windstorm) or terrorism 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 preceding three years for the
insurance policy contemplated by this Section 13.1(a), then Tenant shall be entitled and required to purchase the maximum
insurance coverage it deems most efficient and prudent to purchase and Tenant shall not be required to spend additional funds to
purchase additional coverages insuring against such risks; and provided, further, that some property coverages might be sub-
limited in an amount less than the Maximum Foreseeable Loss as long as the sub-limits are commercially reasonable and prudent
as deemed by Tenant;
(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 probable maximum loss of a 500 year event and
such other hazards and in such amounts as may be customary for comparable properties in the area;
(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), provided that Tenant may self-insure
specific Facilities for the insurance contemplated under this Section 13.1(d), provided that (i) such Facilities that Tenant chooses
to self-insure are not expected to generate more than ten percent (10%) of Net Revenues anticipated to be
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generated from all the Facilities and (ii) Tenant deposits in any impound account created under Section 4.3 hereof an amount
equal to the product of (1) the sum of (A) the insurance premiums paid by Tenant for such period under this Section 13.1(d) to
insurance companies and (B) the amount deposited by Tenant in an impound account pursuant to this provision, and (2) the
percentage of Net Revenues that are anticipated to be generated by the Facilities that are being self-insured by Tenant under this
provision;
(e) Claims for personal injury or property damage under a policy of comprehensive general public liability
insurance with amounts not less than One Hundred Million Dollars ($100,000,000) each occurrence and One Hundred Million
Dollars ($100,000,000) 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) During such time as Tenant is constructing any improvements, Tenant, at its sole cost and expense, shall
carry, or cause to be carried (i) workers’ compensation insurance and employers’ liability insurance covering all persons
employed in connection with the improvements in statutory limits, (ii) a completed operations endorsement to the commercial
general liability insurance policy referred to above, (iii) 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 (iv) 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 contractors or subcontractors.
13.2 Maximum Foreseeable Loss. The term “Maximum Foreseeable Loss” shall mean the largest monetary
loss within one area that may be expected to result from a single fire with protection impaired, the control of the fire mainly
dependent on physical barriers or separations and a delayed manual firefighting by public and/or private fire brigades. If
Landlord reasonably believes that the Maximum Foreseeable Loss has increased at any time during the Term, it shall have the
right (unless Tenant and Landlord agree otherwise) to have such Maximum Foreseeable Loss redetermined by an impartial
national insurance company reasonably acceptable to both parties (the “Impartial Appraiser”), or, if the parties cannot agree on
an Impartial Appraiser, then by an Expert appointed in accordance with Section 34.1 hereof. The determination of the Impartial
Appraiser (or the Expert, as the case may be) shall be final and binding on the parties hereto, and Tenant shall forthwith adjust the
amount of the insurance carried pursuant to this Article XIII to the amount so determined by the Impartial Appraiser (or the
Expert, as the case may be), subject to the approval of the Facility Mortgagee, as applicable. Each party shall pay one-half (1/2)
of the fee, if any, of the Impartial Appraiser. If Landlord pays the Impartial Appraiser, fifty percent (50%) of such costs shall be
Additional Charges hereunder and if Tenant pays such Impartial Appraiser, fifty percent (50%) of such costs shall be a credit
against the next Rent payment hereunder. If Tenant has undertaken any structural alterations or additions to the Leased Property
having a cost or value in excess of Twenty Five Million Dollars ($25,000,000), Landlord may at Tenant’s expense have the
Maximum Foreseeable Loss redetermined at any time after such improvements are made, regardless of when the Maximum
Foreseeable Loss was last determined.
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13.3 Additional Insurance. In addition to the insurance described above, Tenant shall maintain such additional
insurance upon notice from Landlord as may be reasonably required from time to time by any Facility Mortgagee and shall
further at all times maintain adequate workers’ compensation coverage and any other coverage required by Legal Requirements
for all Persons employed by Tenant on the Leased Property in accordance with Legal Requirements.
13.4 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 against the other party. Each party, respectively, shall pay any additional costs or charges for
obtaining such waiver.
13.5 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
policyholder rating of “A-” and a financial rating of “VII” in the most recent version of Best’s Key Rating Guide, or a minimum
rating of “BBB” 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) written 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 insurance policies when issued by the insurers providing such coverage.
13.6 Increase in Limits. If, from time to time after the Commencement Date, Landlord determines in the
exercise of its reasonable business judgment that the limits of the
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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
13.6.
13.7 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; provided that the requirements of this Article XIII (including satisfaction of the
Facility Mortgagee’s requirements and the approval of the Facility Mortgagee) are otherwise satisfied, and provided further that
Tenant maintains specific allocations acceptable to Landlord.
13.8 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 insureds 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.
ARTICLE XIV
14.1 Property Insurance Proceeds. All proceeds (except business interruption not allocated to rent expenses)
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; and provided, further, that if the total amount of
proceeds payable net of the applicable deductibles is One Hundred Fifty Thousand Dollars ($150,000) or less, and, if no Event of
Default has occurred and is continuing, the proceeds shall 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
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obligation to rebuild any Tenant Capital Improvement, provided that the Leased Property is rebuilt in a manner 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 same condition as existed immediately before the damage or destruction and with
materials and workmanship of like kind and quality and to Landlord’s reasonable satisfaction shall be provided 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) 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, it being understood and agreed that
Tenant shall not be required to repair any Tenant Capital Improvement, provided that the Leased Property is rebuilt in a manner
reasonably satisfactory to Landlord), to substantially the same condition as existed immediately before such damage and (ii) such
damage shall not terminate this Master Lease.
(b) If Tenant restores the affected Leased Property and the 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.
(c) If Tenant has not restored the affected Leased Property and gaming operations have not recommenced by the
date that is the third anniversary of the date of any casualty, all remaining insurance proceeds shall be paid to and retained by
Landlord free and clear of any claim by or through Tenant.
(d) In the event neither Landlord nor Tenant is required or elects to repair and restore the Leased Property, all
insurance proceeds, other than proceeds reasonably attributed to any Tenant Capital Improvements (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.
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. Upon the occurrence of any casualty that has a negative impact
on Net Revenue, the Percentage Rent shall continue during the period required to make all necessary repairs at the same rate then
in effect immediately prior to the occurrence of such
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casualty and until such time as the affected Leased Property is rebuilt and gaming operations have recommenced thereon (or such
time as this Master Lease has been terminated as to the affected Leased Property).
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 shall be applied, held and/or disbursed in accordance with the terms of the Facility Mortgage. In the
event that the Facility Mortgagee elects, or is required under the related financing document, to apply the insurance proceeds to
the indebtedness secured by the Facility Mortgage, then Tenant shall not be obligated to repair or restore the Facility and
Landlord shall either (i) refinance with a replacement Facility Mortgage (or otherwise fund) the amount of insurance proceeds
applied to Facility Mortgage indebtedness within twelve (12) months of such application (in which case Tenant shall be obligated
to restore the Facility upon receipt of such proceeds), or (ii) sell to Tenant the Leased Property consisting of such Facility (and
Tenant shall be entitled to retain any remaining insurance proceeds) in exchange for a payment equal to the greater of (1) the
difference between (a) the value of such Facility immediately prior to such casualty, based on the average fair market value of
similar real estate in the areas surrounding such Facility, and (b) the amount of insurance proceeds retained by the Facility
Mortgagee, and (2) the value of such Facility after such casualty, based on the average fair market value of similar real estate in
the areas surrounding such Facility.
14.6 Termination of Master Lease; Abatement of Rent. In the event this Master Lease is terminated as to an
affected Leased Property pursuant to Section 1.4 (with respect to the Term terminating in respect of a Barge-Based Facility),
Section 8.2 (in respect of Tenant being in jeopardy of losing a Gaming License or Landlord being in jeopardy of failing to comply
with a regulatory requirement material to the continued operation of a Facility), Section 14.5 (in the event Facility Mortgagee
elects to apply insurance proceeds to pay down indebtedness secured by a Facility Mortgage following the damage to or
destruction of all or any portion of the Leased Property or such prepayment is required under the related financing document) or
Section 15 .5 (as provided therein) (such termination or cessation, a “Leased Property Rent Adjustment Event”), then:
(i) the Building Base Rent due hereunder from and after the effective date of any such Leased Property Rent Adjustment
Event shall be reduced by an amount determined by multiplying (A) a fraction, (x) the numerator of which shall be
the fair market value for the affected Leased Property immediately prior to the effective date of the Leased
Property Rent Adjustment Event and (y) the denominator of which shall be the fair market value for all of the
Leased Property then subject to the terms of this Master Lease, including the affected Leased Property
immediately prior to the effective date of such Leased Property Rent
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Adjustment Event (in each case the fair market value as determined in good faith by the parties or if the patties
cannot agree, by an Expert pursuant to Section 34.1 of this Master Lease), by (B) the Building Base Rent payable
under this Master Lease immediately prior to the effective date of the Leased Property Rent Adjustment Event as
to the affected Leased Property;
(ii) the Land Base Rent due hereunder from and after the effective date of any such Leased Property Rent Adjustment
Event with respect to a Leased Property shall be reduced by an amount determined by multiplying (A) a fraction,
(x) the numerator of which shall be the fair market value for the affected Leased Property immediately prior to the
effective date of the Leased Property Rent Adjustment Event and (y) the denominator of which shall be the fair
market value for all of the Leased Property then subject to the terms of this Master Lease, including the affected
Leased Property immediately prior to the effective date of the Leased Property Rent Adjustment Event (in each
case the fair market value as determined in good faith by the parties or if the parties cannot agree, by an Expert
pursuant to Section 34.1 of this Master Lease), by (B) the Land Base Rent payable under this Master Lease
immediately prior to the effective date of the Leased Property Rent Adjustment Event as to the affected Leased
Property;
(iii) the Percentage Rent due from and after the effective date of any such Leased Property Rent Adjustment Event with
respect to a Leased Property, shall be reduced by an amount determined by multiplying (A) a fraction, (x) the
numerator of which shall be the fair market value for the affected Leased Property immediately prior to the
effective date of the Leased Property Rent Adjustment Event and (y) the denominator of which shall be the fair
market value for all of the Leased Property then subject to the terms of this Master Lease, including the affected
Leased Property immediately prior to the effective date of the Leased Property Rent Adjustment Event (in each
case the fair market value as determined in good faith by the parties or if the parties cannot agree, by an Expert
pursuant to Section 34.1 of this Master Lease), by (B) the Percentage Rent payable under the definition of
Percentage Rent immediately prior to the effective date of the Leased Property Rent Adjustment Event as to the
affected Leased Property;
(iv) the amount set forth in clause (b) of the proviso of the definition of Percentage Rent shall be modified from and
after the effective date of any such Leased Property Rent Adjustment Event with respect to a Leased Property by
reducing the amount set forth in clause (b) of the proviso of the definition of Percentage Rent by an amount
determined by multiplying (A) a fraction, (x) the numerator of which is the fair market value for the affected
Leased Property immediately prior to the effective date of the Leased Property Rent Adjustment Event
immediately prior to the effective date of the Leased Property Rent Adjustment Event and (y) the denominator of
which is the fair market value for all of the Leased Property then subject to the terms of this Master Lease,
including the affected Leased Property immediately prior to the effective date of the Leased Property Rent
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Adjustment Event (in each case the fair market value as determined in good faith by the parties or if the parties
cannot agree, by an Expert pursuant to Section 34.1 of this Master Lease), by (B) the amount set forth in clause (b)
of the proviso of the definition of Percentage Rent immediately prior to the effective date of the Leased Property
Rent Adjustment Event as to the affected Leased Property; and
(v) Landlord shall retain any claim which Landlord may have against Tenant for failure to insure such Leased Property
as required by Article XIII.
15.1 Condemnation.
ARTICLE XV
(a) Total Taking. If the Leased Property of a Facility is totally and permanently taken by Condemnation (a
“Taking”), this Master Lease shall terminate with respect to such Facility as of the day before the Date of Taking for such
Facility.
(b) Partial Taking. If a portion of the Leased Property of, and any Tenant Capital Improvements to, a Facility are
taken by Condemnation, this Master Lease shall remain in effect if the affected Facility is not thereby rendered Unsuitable for Its
Primary Intended Use, but if such Facility is thereby rendered Unsuitable for Its Primary Intended Use, this Master Lease shall
terminate with respect to such Facility as of the day before the Date of Taking for such Facility.
(c) Restoration. If there is a partial Taking of the Leased Property of, and any Tenant Capital Improvements to, 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 (excluding any Tenant Capital Improvements, it
being understood and agreed that Tenant shall not be required to repair or restore any Tenant Capital Improvements, provided that
the Leased Property is restored in a manner reasonably satisfactory to Landlord), 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 thirty (30) days after the occurrence of the Taking, then the Base Rent for such Facility shall be proportionately reduced, based
on the proportion of the Facility that was subject to the partial Taking and pursuant to the formula set forth in Section 14.6 hereof.
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 Taking.
15.2 Award Distribution. Except as set forth below (and to the extent provided in Section 15.1(c) hereof), 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 Taking for Tenant’s lost profits value and moving expenses and, the portion of the Award, if any, allocated to any Tenant
Capital Improvements (subject to Tenant’s restoring the Leased Property not subject to a
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Taking in a manner reasonably satisfactory to Landlord) 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 taking by
Condemnation only when the use and occupancy by the taking authority has continued for longer than 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 Condemnation Awards Paid to Facility Mortgagee. Notwithstanding anything herein to the contrary, in
the event that any Facility Mortgagee is entitled to any Condemnation Award, or any portion thereof, under the terms of any
Facility Mortgage or related financing agreement, such award shall be applied, held and/or disbursed in accordance with the
terms of the Facility Mortgage or related financing agreement. In the event that the Facility Mortgagee elects to apply the
Condemnation Award to the indebtedness secured by the Facility Mortgage in the case of a Taking as to which the restoration
provisions apply (or the related financing agreement requires such application), Landlord shall either (i) within ninety (90) days
of the notice from the Facility Mortgagee make available to Tenant for restoration of such Leased Property funds (either through
refinance or otherwise) equal to the amount applied by the Facility Mortgagee or applicable to restoration of the Leased Property,
or (ii) sell to Tenant the portion of the Leased Property consisting of the Facility that is not subject to the Taking in exchange for a
payment equal to the greater of (1) the difference between (a) the value of such Facility immediately prior to such Taking, based
on the average fair market value of similar real estate in the areas surrounding such Facility, and (b) the amount of the
Condemnation Award retained by the Facility Mortgagee, and (2) the value of the remaining portion of such Facility after such
Taking, based on the average fair market value of similar real estate in the areas surrounding such Facility.
15.5 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 Taking (or pursuant to Section 15.4 hereof as a result of a
Facility Mortgagee electing to apply a Condemnation Award to the indebtedness secured by the Facility Mortgage), 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
16.1 Events of Default. Any one or more of the following shall constitute an “Event of Default”:
(a) (i) Tenant shall fail to pay any installment of Rent within two (2) Business Days of when due and such failure
is not cured by Tenant within one (1) Business Day after notice from Landlord of Tenant’s failure to pay such installment of Rent
when due (and such notice of failure from Landlord may be given any time after such installment is more than one (1) Business
Day late);
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(ii) Tenant shall fail on any two separate occasions in the same Fiscal Year to pay any installment of Rent within
two (2) Business Days;
(iii) Tenant shall fail on any occasion to pay any installment of Rent within five (5) Business Days of when due;
or
(iv) Tenant shall fail to pay any Additional Charge within five (5) Business Days after notice from Landlord of
Tenant’s failure to make such payment of such Additional Charge when due (and such notice of failure
from Landlord may be given any time after such payment is more than one (1) Business Day late);
(b) a default shall occur under any Guaranty or other instrument (other than the Development Agreement (as
defined in the Sister Master Lease) and any ancillary documents entered into by and between Landlord and Tenant and/or their
respective Affiliates in connection with the Development Agreement), executed by Tenant or an Affiliate of Tenant in favor of
Landlord or an Affiliate of Landlord, where the default is not cured within any applicable grace period set forth therein or, if no
cure periods are provided, within 15 days after notice from Landlord (or in the case of a breach of Paragraph 8 of the Guaranty,
the cure periods provided herein with respect to such action or omission);
(c) Tenant or any Guarantor shall:
(i) admit in writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or a petition to take advantage of any insolvency act;
(iii) make an assignment for the benefit of its creditors;
(iv) consent to the appointment of a receiver of itself or of the whole or any substantial part of its property; or
(v) 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;
(d) Tenant or any Guarantor (other than an Immaterial Subsidiary 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 any Guarantor (other
than an Immaterial Subsidiary Guarantor), a receiver of Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor)
or of the whole or substantially all of the Tenant’s or any Guarantor’s (other than an Immaterial Subsidiary Guarantor’s) property,
or approving a petition filed against Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor) seeking
reorganization or arrangement of Tenant or any Guarantor (other than an Immaterial Subsidiary 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;
(e) Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor) shall be liquidated or dissolved
(except that any Guarantor may be liquidated or dissolved into another Guarantor or the Tenant or so long as its assets are
distributed following such liquidation or dissolution to another Guarantor or Tenant);
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(f) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in
any proceeding relating to more than $1,000,000 and the same shall not be vacated, discharged or stayed pending appeal (or
bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof 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;
(g) except as a result of material damage, destruction or Condemnation, Tenant voluntarily ceases operations for
its Primary Intended Use at a Facility and such event would reasonably be expected to have a material adverse effect on Tenant,
the Facilities, or on the Leased Property, in each case, taken as a whole;
to be untrue when made in any material respect that materially and adversely affects Landlord;
(h) any of the representations or warranties made by Tenant hereunder or by any Guarantor in a Guaranty proves
(i) any applicable license or other agreements material to a Facility’s operation for its Primary Intended Use are
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;
(j) except to a permitted assignee pursuant to Section 22.2 or a permitted subtenant or Subsidiary that joins as a
Guarantor to the Guaranty pursuant to Section 22.3, 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;
(k) Tenant or any Guarantor, by its acts or omissions, causes the occurrence of a default under any provision (to
the extent Tenant has knowledge of such provision and Tenant’s or such Guarantor’s obligations with respect thereto) of any
Facility Mortgage, related documents or obligations thereunder by which Tenant is bound in accordance with Section 31.1 or has
agreed under the terms of this Master Lease to be bound, which default is not cured within the applicable time period, if the effect
of such default is to cause, or to permit the holder or holders of that Facility Mortgage or Indebtedness secured by that Facility
Mortgage (or a trustee or agent on behalf of such holder or holders), to cause, that Facility Mortgage (or the Indebtedness secured
thereby) to become or be declared due and payable (or redeemable) prior to its stated maturity (excluding in any case any default
related to the financial performance of Tenant or any Guarantor);
two consecutive fiscal quarters or (y) a breach of Section 23.3(b) hereof;
(l) (x) a breach by Tenant of Section 23.3(a) hereof for two consecutive Test Periods ending on the last day of
(m) any event or condition occurs that (i) results in any Material Indebtedness becoming due prior to its stated
maturity or (ii) enables or permits (with all applicable grace periods, if any, having expired) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or exercise any other remedy (other
than any prepayment, repurchase, or redemption, arising out of or relating to a change of control or asset sale or any redemption,
repurchase, conversion or settlement with respect to any Indebtedness convertible into Equity Interests pursuant to its terms
unless such redemption, repurchase, conversion or settlement results from a default thereunder or
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an event that would otherwise constitute an Event of Default, provided that failure to consummate any such required prepayment,
redemption, repurchase, conversion or settlement under any Material Indebtedness shall constitute an Event of Default), or (iii)
the Tenant or any Guarantor shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof
(provided that this paragraph (m) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or
transfer of the property or assets securing such Indebtedness if such sale or transfer is not prohibited hereby and under the
documents providing for such Indebtedness);
(n) if Tenant shall fail to observe or perform any other term, covenant or condition of this Master Lease 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;
(o) if Tenant or any Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or
more final judgments aggregating in excess of the product of (i) $100 million and (ii) the CPI Increase (and only to the extent not
covered by insurance), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45)
consecutive days; and
(p) an assignment of Tenant’s interest in this Master Lease (including pursuant to a Change in Control) shall
have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in
default of the provisions set forth in Section 22.1 below.
(q) an “Event of Default” shall have occurred under the Sister Master Lease.
No Event of Default (other than a failure to make payment of money) shall be deemed to exist under this 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.
16.2 Certain Remedies. If an Event of Default shall have occurred and be continuing, Landlord may (a)
terminate this Master Lease by giving Tenant no less than ten (10) days’ notice of such termination and the Term shall terminate
and all rights of Tenant under this Master Lease shall cease, (b) seek damages as provided in Section 16.3 hereof, and/or (c)
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 of the Facilities) 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 (including any such Tenant Capital
Improvement thereto).
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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 Rent due and payable
under this Master Lease to and including the date of such termination. Thereafter:
the occurrence of an Event of Default, either:
Tenant shall forthwith pay to Landlord, at Landlord’s option, as and for liquidated and agreed current damages for
(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 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
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(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 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.
17.1 Permitted Leasehold Mortgagees.
ARTICLE XVII
(a) On one or more occasions without Landlord’s prior consent Tenant may mortgage or otherwise encumber
Tenant’s leasehold 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 (in form and
substance reasonably satisfactory to Landlord) 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
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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(iii)) 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 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. In no event shall a Permitted
Leasehold Mortgage encumber Landlord’s fee simple interest in the Leased Property.
(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 written 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 written 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, written 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 the 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, the 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 the Landlord. If requested to do so by Landlord, Tenant shall
thereafter also provide the Landlord from time to time with a copy of each amendment or other
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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 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:
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(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 the 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
(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
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(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
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.
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(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 the 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 the Tenant to be performed hereunder and meet the qualifications
of Discretionary Transferee or be reasonably consented to by Landlord in accordance with Section 22.2(i) 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(iii) 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 Section 22.2(iii) of this Master Lease and enter
into Permitted Leasehold Mortgages in the same manner as the original Tenant, subject to the terms hereof.
(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(iii) of this
Master Lease or the transferee is reasonably consented to by Landlord in accordance with Section 22.2(i) 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 written 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,
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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 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. 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(c), (d), (e), (f) (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), (m) (as related to the
Indebtedness secured by a Permitted
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Leasehold Mortgage that is junior to the lien of the Permitted Leasehold Mortgagee and such junior lien would be extinguished
by the foreclosure of the Permitted Leasehold Mortgage that is held by such Permitted Leasehold Mortgagee) or (o) (if the
judgment is in favor of a Permitted Leasehold Mortgagee other than a Permitted Leasehold Mortgagee holding a Permitted
Leasehold Mortgage that is senior to the lien of such Permitted Leasehold Mortgagee) 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) 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 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 the Tenant (but not such proceeds, if
any, payable jointly to the Landlord and the Tenant or to the Landlord, to the Facility Mortgagee or to a third- party escrowee)
pursuant to the provisions of this Master Lease.
(j) 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.
(k) 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.
(l) 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.
(m) 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
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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, and no
recourse against Landlord shall be had against any other assets of Landlord whatsoever.
(n) 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 sale process described in Article XXXVI be commenced, the determination and
agreement of the Gaming Assets FMV, the Successor Tenant Rent, and the potential Successor Tenants that should be included in
the process, and negotiation with such Successor Tenants), in each case, in accordance with and subject to the terms and
provisions of Article XXXVI, including without limitation the requirement that Successor Tenant meet the qualifications of
Discretionary Transferee.
(o) 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 Landlord’s Right to Cure Debt Agreement. 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) 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. In addition, Tenant agrees that it will ensure that any such 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) includes a provision with the effect that should Tenant fail to make any payment or to perform any
act required to be made or performed under an agreement related to Material Indebtedness or under the Debt Agreement
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when due or within any cure period provided for therein (if any), Landlord may, subject to applicable Gaming Regulations and
the terms hereof, cure any such default by making such payment to the applicable lenders or Representative or otherwise
performing such acts within the cure period thereunder (if any) for the account of Tenant, to the extent such default is susceptible
to cure by Landlord; provided that Landlord’s right to cure such default shall not be any greater than the rights of the obligors
under such Material Indebtedness or Debt Agreement to cure such default. Landlord and Tenant agree that 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 for the
account of Tenant and paid by Tenant to Landlord on demand.
ARTICLE XVIII
18.1 Sale of the Leased Property. Landlord shall not voluntarily sell all or portions of the Leased Property
during the Term without the prior written consent of Tenant, which consent may not be unreasonably withheld. Notwithstanding
the foregoing, Tenant’s consent shall not be required for (A) any transfer to a Facility Mortgagee contemplated under Article
XXXI hereof which may include, without limitation, a transfer by foreclosure brought by the Facility Mortgagee or a transfer by
deed in lieu of foreclosure (and the first subsequent sale by such Facility Mortgagee to the extent the Facility Mortgagee has been
diligently attempting to expedite such first subsequent sale from the time it initiated foreclosure proceedings taking into account
the interest of such Facility Mortgagee to maximize the proceeds of such sale), (B) a sale by Landlord of all of the Leased
Property to a single buyer or group of buyers, other than to an operator, or an Affiliate of an operator, of Gaming Facilities
(provided that Landlord shall be permitted to sell all of the Leased Property to a real estate investment trust even if such real
estate investment trust is an Affiliate of an operator), (C) a merger transaction or sale by Landlord or GLP involving all of the
Facilities, other than with an operator, or an Affiliate of an operator, of Gaming Facilities (provided that Landlord or GLP shall be
permitted to merge with or sell all of the Leased Property to a real estate investment trust even if such real estate investment trust
is an Affiliate of an operator), (D) a sale/leaseback transaction by Landlord with respect to any or all of the Leased Properties for
financing purposes, (E) any sale of all or a portion of the Leased Property or the Facilities that does not change the identity of the
Landlord hereunder, including without limitation a participating interest in Landlord’s interest under this Master Lease or a sale
of Landlord’s reversionary interest in the Leased Property, or (F) a sale or transfer to an Affiliate of GLP or a joint venture entity
in which GLP or its Affiliate is the managing member or partner. Any sale by Landlord of all or any portion of the Leased
Property pursuant to this Section 18.1 shall be subject in each instance to all of the rights of Tenant under this Master Lease and,
to the extent necessary, any purchaser or successor Landlord and/or other controlling persons must be approved by all applicable
gaming regulatory agencies to ensure that there is no material impact on the validity of any of the Gaming Licenses or the ability
of Tenant to continue to use the Facilities for gaming activities in substantially the same manner as immediately prior to
Landlord’s sale.
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ARTICLE XIX
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
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
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 property occurring on or about the Leased Property or adjoining sidewalks under the control of Tenant;
(ii) any use, misuse, non-use, condition, maintenance or repair by Tenant 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 of any Legal Requirement. Any amounts which become payable by Tenant under this Article XXI shall be
paid within ten (10) days after liability therefor is 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
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by employees, agents, assignees, contractors, subcontractors or others acting for or on behalf of Tenant (whether or not they are
negligent, intentional, willful or unlawful), shall be strictly attributable to Tenant.
ARTICLE XXII
22.1 Subletting and Assignment. Tenant shall not, without Landlord’s prior written consent, which, except as
specifically set forth herein, may be withheld in Landlord’s sole and absolute discretion, voluntarily or by operation of law assign
(which term includes any transfer, sale, encumbering, pledge or other transfer or hypothecation) this Master Lease, sublet all or
any part of the Leased Property of any Facility or engage the services of any Person (other than an Affiliate of Tenant that is also
a Guarantor) for the management or operation of any Facility (provided that the foregoing shall not restrict a transferee of Tenant
from retaining a manager necessary for such transferee’s satisfying the requirement set forth in clause (a)(1) of the definition of
“Discretionary Transferee”). 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 and for that reason, except as set forth herein, Landlord retains sole and absolute discretion in
approving or disapproving any assignment or sublease. Any Change in Control shall constitute an assignment of Tenant’s interest
in this Master Lease within the meaning of this Article XXII and the provisions requiring consent contained herein shall apply.
22.2 Permitted Assignments. Notwithstanding the foregoing, and subject to Section 40.1, Tenant may:
(i) with Landlord’s prior written consent, which consent shall not be unreasonably withheld, allow to occur or
undergo a Change in Control (including without limitation a transfer or assignment of this Master Lease to any third party in
conjunction with a sale by Tenant of all or substantially all of Tenant’s assets relating to the Facilities);
(ii) without Landlord’s prior written consent, assign this Master Lease or sublease the Leased Property to
Tenant’s Parent, a wholly-owned Subsidiary of Tenant’s Parent or a wholly-owned Subsidiary of Tenant if all of the following are
first satisfied: (w) such Affiliate becomes a party to the Guaranty as a Guarantor and in the case of an assignment of this Master
Lease, becomes party to and bound by this Master Lease; (x) Tenant remains fully liable hereunder; (y) the use of the Leased
Property continues to comply with the requirements of this Master Lease; and (z) Landlord in its reasonable discretion shall have
approved the form and content of all documents for such assignment or sublease and received an executed counterpart thereof;
and
(iii) without Landlord’s prior written consent:
(w) undergo a Change in Control of the type referred to in clause (i)(a) of the definition of Change in
Control (such Change in Control, a “Tenant Parent COC”) if a Person acquiring such beneficial ownership or
control (1) is a Discretionary Transferee and (2) the Parent Company of such Discretionary
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Transferee, if any, has become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord
or, if such Discretionary Transferee does not have a Parent Company, such Discretionary Transferee has become a
Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord;
(x) undergo a Change in Control whereby a Person acquires beneficial ownership and control of one
hundred percent (100%) of the Equity Interests in Tenant in connection with a Change in Control that does not
constitute a Tenant Parent COC or a Foreclosure COC (such Change in Control, a “Tenant COC”) if (1) such
Person is a Discretionary Transferee, (2) the Parent Company of such Discretionary Transferee, if any, has become
a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord or, if such Discretionary
Transferee does not have a Parent Company, such Discretionary Transferee has become a Guarantor and provided
a Guaranty on terms reasonably satisfactory to Landlord, and (3) the Adjusted Revenue to Rent Ratio with respect
to all of the Facilities (determined at the proposed effective time of the Change in Control) for the then most
recently preceding four (4) fiscal quarters for which financial statements are available is at least 1.4:1;
(y) assign this Master Lease to any Person in an assignment that does not constitute a Foreclosure
Assignment if (1) such Person is a Discretionary Transferee, (2) such Discretionary Transferee agrees in writing to
assume the obligations of the Tenant under this Master Lease without amendment or modification other than as
provided below, (3) the Parent Company of such Discretionary Transferee, if any, has become a Guarantor and
provided a Guaranty on terms reasonably satisfactory to Landlord or, if such Discretionary Transferee does not
have a Parent Company, such Discretionary Transferee has become a Guarantor and provided a Guaranty on terms
reasonably satisfactory to Landlord, and (4) the Adjusted Revenue to Rent Ratio with respect to all of the
Facilities (determined at the proposed effective time of the assignment) for the then most recently preceding four
(4) fiscal quarters for which financial statements are available is at least 1.4:1; or
(z) (i) assign this Master Lease by way of foreclosure of the Leasehold Estate or an assignment-in-lieu of
foreclosure to any Person (any such assignment, a “Foreclosure Assignment”) or (ii) undergo a Change in
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 on a permitted pledge of the Equity Interests in
Tenant or an assignment in lieu of such foreclosure (a “Foreclosure COC”) or (iii) effect the first subsequent sale
or assignment of the Leasehold Estate or Change in 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,
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effected by a Permitted Leasehold Mortgagee or a Permitted Leasehold Mortgagee Foreclosing Party, to the extent
such Permitted Leasehold Mortgagee or Permitted Leasehold Mortgagee Designee has been diligently attempting
to expedite such first subsequent sale from the time it has initiated foreclosure proceedings taking into account the
interest of such Permitted Leasehold Mortgagee or Permitted Leasehold Mortgagee Designee in maximizing the
proceeds of such disposition if (1) such Person is a Discretionary Transferee, (2) in the case of any Foreclosure
Assignment, if such Discretionary Transferee is not a Permitted Leasehold Mortgagee Designee such
Discretionary Transferee agrees in writing to assume the obligations of the Tenant under this Master Lease without
amendment or modification other than as provided below (which written assumption, in the case of a Permitted
Leasehold Mortgagee Foreclosing Party, may be made by a Subsidiary of a Permitted Leasehold Mortgagee or a
Permitted Leasehold Mortgagee Designee) and (3) if such Discretionary Transferee is not a Permitted Leasehold
Mortgagee Foreclosing Party, the Parent Company of such Discretionary Transferee, if any, has become a
Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord or, if such Discretionary
Transferee does not have a Parent Company, such Discretionary Transferee has become a Guarantor and provided
a Guaranty on terms reasonably satisfactory to Landlord;
provided that no such Change in Control or assignment referred to in this Section 22.2(iii) shall be permitted without
Landlord’s prior written consent unless, and in which case such consent shall not be unreasonably withheld, (A) the use of
the Leased Property at the time of such Change in Control or assignment and immediately after giving effect thereto is
permitted by Section 7.2 hereof, and (B) Landlord in its reasonable discretion shall have approved the form and content of
all documents for such assignment and assumption and received an executed counterpart thereof (provided no such
approval shall be required in the case of a Tenant Parent COC or a Tenant COC, so long as (A) Tenant remains obligated
under the Master Lease and the Guaranty remains in effect except with respect to any release of Tenant’s Parent permitted
thereunder, (B) the requirements for a Guaranty from the Parent Company or Discretionary Transferee under clause (w) or
(x) above are met, and (C) any modifications to this Master Lease required pursuant to the next succeeding paragraph are
made); and
(iv) without Landlord’s prior written consent, pledge or mortgage its Leasehold Estate to a Permitted Leasehold
Mortgagee and permit a pledge of the equity interests in Tenant to be pledged to a Permitted Leasehold Mortgagee.
Upon the effectiveness of any Change in Control or assignment permitted pursuant to this Section 22.2, such Discretionary
Transferee (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 Change in Control or assignment and such
technical amendments as may be necessary or appropriate in the reasonable opinion of such requesting party in connection with
such Change in Control or assignment including, without
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limitation, changes to the definition of Change in Control to substitute the Parent Company (or, if the Discretionary Transferee
does not have a Parent Company, the Discretionary Transferee) for Tenant’s Parent therein and in the provisions of this Master
Lease regarding delivery of financial statements and other reporting requirements with respect to Tenant’s Parent. After giving
effect to any such Change in Control or assignment, unless the context otherwise requires, references to Tenant and Tenant’s
Parent hereunder shall be deemed to refer to the Discretionary Transferee or its Parent Company, as applicable.
Notwithstanding anything contained herein to the contrary, and for the avoidance of doubt, Tenant shall have no right to assign its
interest in this Master Lease (in whole or in part) under this Section 22.2 unless Tenant or its Affiliate is simultaneously assigning
its interest in the Sister Lease to the same Person.
22.3 Permitted Sublease Agreements. Notwithstanding the provisions of Section 22.1, but subject to
compliance with the provisions of this Section 22.3 and of Section 40.1, (a) provided that no Event of Default shall have occurred
and be continuing, Tenant shall be permitted to sublease gaming operations to a wholly-owned Subsidiary of Tenant that becomes
a Guarantor by executing the Guaranty in form and substance reasonably satisfactory to Landlord, (b) the Effective Date
Subleases shall be permitted without any further consent from Landlord (provided that any amendments or modifications thereto
shall be subject to the requirements of this Section 22.3 and 22.4), and (c) provided that no Event of Default shall have occurred
and be continuing, from and after the Effective Date, Tenant may enter into a sublease agreement without the prior written
consent of Landlord, provided that (i) (1) the space subject to such sublease agreement will not be used for gaming purposes (and
any such space sublet for any gaming use will require Landlord’s prior written consent, which consent may not be unreasonably
withheld) and (2) is not for the all or substantially all of the applicable Facility, unless in each case such sublease agreement is
with a wholly-owned Subsidiary of Tenant that becomes a Guarantor by executing the Guaranty in form and substance
reasonably satisfactory to Landlord; (ii) all sublease agreements under clauses (b) and (c) of this Section 22.3 are made in the
normal course of the Primary Intended Use and to concessionaires or other third party users or operators of portions of the Leased
Property in furtherance or support of the Primary Intended Use, except with respect to the Effective Date Subleases; (iii) each
sublease agreement under this Section 22.3 includes a provision providing Landlord audit rights (subject to reasonable
confidentiality obligations) to the fullest extent necessary to determine Net Revenues hereunder, except with respect to the
Specified Subleases; and (iv) Landlord shall have the right to reasonably approve the identity of any subtenants under this
Section 22.3 (except with respect to subtenants under the Specified Subleases and any permitted assignment by such subtenants
with respect to such Specified Sublease) that will be operating all or portions of the Leased Property for its Primary Intended Use
to ensure that all are adequately capitalized and competent and experienced for the operations which they will be conducting.
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 (x) a waiver by Landlord of any of the provisions of this
Master Lease, (y) the acceptance by Landlord of such subtenant as a tenant or (z) a release of Tenant from the future performance
of its obligations hereunder. If reasonably requested by Tenant in connection with a sublease permitted under
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clause (c) above, Landlord and such sublessee shall enter into a subordination, non-disturbance and attornment agreement with
respect to such sublease in a form reasonably satisfactory to Landlord (and if a Facility Mortgage is then in effect, Landlord shall
use reasonable efforts to cause the Facility Mortgagee to enter into such subordination, non- disturbance and attornment
agreement).
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;
(iii) except as otherwise provided herein, no subtenant or assignee shall be permitted to further sublet all or any
part of the applicable Leased Property 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 under Section 22.3(a) may pledge
and mortgage its sublease hold 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, subject to Article XXXVI, at
Landlord’s option, the subtenant shall make full and complete attornment to Landlord for the balance of the term of the sublease,
which attornment shall be evidenced by an agreement in form and substance satisfactory to Landlord and which the subtenant
shall execute and deliver within five (5) 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 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 written notice from Landlord stating that this Master Lease has been
cancelled, surrendered or terminated, then, subject to Article XXXVI, 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, subletting or management arrangement, including
reasonable attorneys’, architects’, engineers’ or other consultants’ fees whether or not such sublease, assignment or management
agreement is actually consummated.
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22.6 No Release of Tenant’s Obligations; Exception. No assignment (other than a permitted transfer pursuant
to Section 22.2(i) or Section 22.2(iii)(y) or Section 22.2(iii)(z)(1) or Section 22.2(iii)(z)(3), in connection with a sale or
assignment of the 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. 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.
23.1 Officer’s Certificates and Financial Statements.
ARTICLE XXIII
(a) Officer’s Certificate. Each of Landlord and Tenant shall, at any time and from time to time 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. Each Guarantor or Tenant, as the case may be, shall deliver a written
notice within two (2) Business Days of obtaining knowledge of the occurrence of a default hereunder.
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Such notice shall include a detailed description of the default and the actions such Guarantor or Tenant has taken or shall take, if
any, to remedy such default.
(b) Statements. Tenant shall furnish the following statements to Landlord:
(i) Within sixty-five (65) days after the end of Tenant Parent’s Fiscal Years (commencing with the Fiscal Year
ending December 31, 2013) or concurrently with the filing by Tenant’s Parent of its annual report on Form 10-K with the
SEC, whichever is earlier: (x) Tenant’s Parent’s Financial Statements; (y) a certificate, executed by the chief financial
officer or treasurer of the Tenant’s Parent (a) certifying that no default has occurred under this Master Lease or, if such a
default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with
respect thereto and (b) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable
detail as of such Fiscal Year (commencing with the Fiscal Year ending December 31, 2014); and (z) a report with respect
to Tenant’s Parent’s Financial Statements from Tenant’s Parent’s accountants, which report shall be unqualified as to
going concern and scope of audit of Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern
relating to any debt maturities in the twelve month period following the date of such audit or any projected financial
performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and
shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position
of Tenant’s Parent and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the
periods indicated in conformity with GAAP and (b) 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;
(ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s
Fiscal Year (commencing with the fiscal quarter ending March 31, 2014) or concurrently with the filing by Tenant’s
Parent of its quarterly report on Form 10-Q with the SEC, whichever is earlier, a copy of Tenant’s Parent’s Financial
Statements for such period, together with a certificate, executed by the chief financial officer or treasurer of Tenant’s
Parent (i) certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof
and any corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the
financial covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test
Period has been completed which has commenced following the date of this Master Lease and (iii) 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 (subject to normal year-end audit
adjustments and the absence of footnotes);
(iii) Promptly following Landlord’s request from time to time, (a) five-year forecasts of Tenant’s income
statement and balance sheet covering such quarterly and
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annual periods as may be reasonably requested by Landlord, and in a format consistent with Tenant Parent’s quarterly and
annual financial statements filed with the SEC, and such additional financial information and projections as may be
reasonably requested by Landlord in connection with syndications, private placements, or public offerings of GLP’s or
Landlord’s 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 or GLP may require for its
ongoing filings with the SEC under both the Securities Act and the Securities Exchange Act of 1934, as amended,
including, but not limited to 10-Q Quarterly Reports, 10-K Annual Reports and registration statements to be filed by
Landlord or GLP during the Term of this Master Lease, the Internal Revenue Service (including in respect of GLP’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 GLP or its Subsidiaries subject to Section 23.1(c) below);
(iv) Within thirty-five (35) days after the end of each calendar month, a copy of Tenant’s income statement for
such month and Tenant’s balance sheet as of the end of such month (which may be subject to quarterly and year-end
adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall
provide such financial reports for the final month thereof as soon as is reasonably practicable following the closing of the
books for such month and in sufficient time so that Landlord or its Affiliate is able to include the operational results for
the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) 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 carries on any part of the
Primary Intended Use of all or any portion of the Leased Property;
(vi) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a capital
and operating budget for each Facility for that Fiscal Year; and
(vii) 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).
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(c) Notwithstanding the foregoing, Tenant shall not be obligated (1) to provide information or assistance that
could give Landlord or its Affiliates a “competitive” advantage with respect to markets in which GLP and Tenant or Tenant’s
Parent might be competing at any time (it being understood that Landlord shall retain audit rights with respect to such
information to the extent required to confirm Tenant’s compliance with the Master Lease terms (and GLP’s compliance with
Securities Exchange Commission, 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 GLP) are provided
access to such information) or (2) to provide information that is subject to the quality assurance immunity or is subject to
attorney-client privilege or the attorney work product doctrine.
23.2 Public Offering Information. Tenant specifically agrees that Landlord may include financial information
and such information concerning the operation of the Facilities (1) which is publicly available or (2) 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 GLP’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, to the extent
such information is not publicly available, the recipients thereof shall be obligated to maintain the confidentiality thereof 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 GLP shall revise or change the wording of information previously publicly disclosed by Tenant and
furnished to Landlord or GLP 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 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, participation in road shows and other
presentations at Landlord’s or GLP’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 GLP or any direct or indirect parent entity of Landlord or GLP or to
satisfy GLP’s or Landlord’s SEC disclosure requirements or the disclosure requirements of any direct or indirect parent entity of
Landlord or GLP. 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.
23.3 Financial Covenants. (a) Tenant on a consolidated basis with respect to all of the Facilities shall maintain
an Adjusted Revenue to Rent Ratio 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, 2014) of at least 1.1:1.
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(b) In the event that Tenant does not satisfy at any time the Adjusted Revenue to Rent Ratio set forth in Section
23.3(a), Tenant’s Parent shall not be permitted to make any Restricted Payment until Tenant is in compliance with such ratio in a
subsequent period.
23.4 Landlord Obligations. Landlord acknowledges and agrees that certain of the information contained in the
Financial Statements and/or in the Financials 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, Landlord shall have the right to share such information with GLP and their respective officers, employees, directors,
Facility Mortgagee, agents and lenders party to material debt instruments entered into by GLP or Landlord, actual or prospective
arrangers, underwriters, investors or lenders with respect to Indebtedness or Equity Interests that may be issued by GLP or
Landlord, rating agencies, accountants, attorneys and other consultants (the “Landlord Representatives”), provided that 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 and to comply with all federal, state and other securities laws applicable
with respect to such information and (ii) that neither it nor any 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 or GLP (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 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 GLP 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 or GLP).
ARTICLE XXIV
24.1 Landlord’s Right to Inspect. Upon reasonable advance notice to Tenant, Tenant shall permit Landlord and
its authorized representatives to inspect its Leased Property
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during usual business hours. Landlord shall take care to minimize disturbance of the operations on the Leased Property, except in
the case of emergency.
ARTICLE XXV
25.1 No Waiver. No delay, omission or failure by Landlord 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
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
26.1 Remedies Cumulative. 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
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.
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 XXVIII
ARTICLE XXIX
29.1 Conveyance by Landlord. If Landlord or any successor owner of the Leased Property shall convey the
Leased Property in accordance with the 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 the Landlord under this Master Lease arising
or accruing from and after the date of such
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conveyance or other transfer and all such future liabilities and obligations shall thereupon be binding upon the new owner.
ARTICLE XXX
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 thereafter provided for in
this Master Lease or consented to by Tenant. 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
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; provided, however, if Tenant has not consented to any such Facility Mortgage entered into by Landlord after the
Commencement Date, Tenant’s obligations with respect thereto shall be subject to the limitations set forth in Section 31.3. 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 shall be conditioned upon the execution by
the holder of each Facility Mortgage and delivery to Tenant of a nondisturbance and attornment agreement substantially in the
form attached hereto as Exhibit F-1 (provided that upon the request of Landlord such nondisturbance and attornment agreement
shall also incorporate subordination provisions referenced above, as contemplated below, and be in substantially the form
attached hereto as Exhibit F-2, and be executed by Tenant as well as Landlord), which will 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 in a foreclosure
or similar proceeding or in a transfer in lieu of any such foreclosure or a successor owner of the Leased Property (each, a
“Foreclosure Purchaser”) and which provides that so long as there is not then outstanding and continuing an Event of Default
under this Master Lease, the holder of such Facility Mortgage, and any Foreclosure Purchaser shall disturb neither Tenant’s
leasehold interest or possession of the Leased Property in accordance with the terms hereof, nor any of its 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
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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
(A) 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, or (B) reasonable amendments or modifications to this Master Lease as a condition
thereto, Tenant hereby agrees to execute and deliver the same so long as any such amendments or modifications do not (i)
increase Tenant’s monetary obligations under this Master Lease, (ii) adversely increase Tenant’s non-monetary obligations under
this Master Lease in any material respect, or (iii) diminish Tenant’s rights under this Master Lease in any material respect.
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) 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 modification or amendment to this Master Lease or any previous
prepayment of more than one month’s rent, unless such 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.
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31.3 Compliance with Facility Mortgage Documents. (a) Tenant acknowledges that any Facility Mortgage
Documents executed by Landlord or any Affiliate of Landlord may impose certain obligations on the “borrower” or other
counterparty thereunder to comply with or cause the operator and/or lessee of a Facility to comply with all representations,
covenants and warranties contained therein relating to such Facility and the operator and/or lessee of such Facility, including,
covenants relating to (i) the maintenance and repair of such Facility; (ii) maintenance and submission of financial records and
accounts of the operation of such Facility and related financial and other information regarding the operator and/or lessee of such
Facility and such Facility itself; (iii) the procurement of insurance policies with respect to such Facility; and (iv) without limiting
the foregoing, compliance with all applicable Legal Requirements relating to such Facility and the operation of the Business
thereof. For so long as any Facility Mortgages encumber the Leased Property or any portion thereof or interest therein, Tenant
covenants and agrees, at its sole cost and expense and for the express benefit of Landlord, to operate the applicable Facility(ies)
in strict compliance with the terms and conditions of the Facility Mortgage Documents (other than payment of any indebtedness
evidenced or secured thereby) and to timely perform all of the obligations of Landlord relating thereto, or to the extent that any of
such duties and obligations may not properly be performed by Tenant, Tenant shall cooperate with and assist Landlord in the
performance thereof (other than payment of any indebtedness evidenced or secured thereby); provided, however, notwithstanding
the foregoing, this Section 31.3(a) shall not be deemed to, and shall not, impose on Tenant obligations which (i) increase Tenant’s
monetary obligations under this Master Lease, (ii) adversely increase Tenant’s non-monetary obligations under this Master Lease
in any material respect, or (iii) diminish Tenant’s rights under this Master Lease in any material respect. For purposes of the
foregoing, any proposed implementation of new financial covenants shall be deemed to diminish Tenant’s rights under this
Master Lease in a material respect (it being understood that Landlord may agree to such financial covenants in any Facility
Mortgage Documents and such financial covenants will not impose obligations on Tenant). If any new Facility Mortgage
Documents to be executed by Landlord or any Affiliate of Landlord would impose on Tenant any obligations under this Section
31.3(a), Landlord shall provide copies of the same to Tenant for informational purposes (but not for Tenant’s approval) prior to
the execution and delivery thereof by Landlord or any Affiliate of Landlord; provided, however, that neither Landlord nor its
Affiliates shall enter into any new Facility Mortgage Documents imposing obligations on Tenant with respect to impounds that
are more restrictive than obligations imposed on Tenant pursuant to this Master Lease.
(b) Without limiting or expanding Tenant’s obligations pursuant to Section 31.3(a), during the Term of this
Master Lease, Tenant acknowledges and agrees that, except as expressly provided elsewhere in this Master Lease, it shall
undertake at its own cost and expense the performance of any and all repairs, replacements, capital improvements, maintenance
items and all other requirements relating to the condition of a Facility that are required by any Facility Mortgage Documents or
by Facility Mortgagee, and Tenant shall be solely responsible and hereby covenants to fund and maintain any and all impound,
escrow or other reserve or similar accounts required under any Facility Mortgage Documents as security for or otherwise relating
to any operating expenses of a Facility, including any capital repair or replacement reserves and/or impounds or escrow accounts
for taxes or insurance premiums (each
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a “Facility Mortgage Reserve Account”); provided, however, this Section 31.3(b) shall not (i) increase Tenant’s monetary
obligations under this Master Lease, (ii) adversely increase Tenant’s non- monetary obligations under this Master Lease in any
material respect, (iii) diminish Tenant’s rights under this Master Lease in any material respect, or (iv) impose obligations to fund
such reserve or similar accounts in excess of amounts required under this Master Lease in respect of reserve or similar accounts
under the circumstances required under this Master Lease; and provided, further, that any amounts which Tenant is required to
fund into a Facility Mortgage Reserve Account with respect to satisfaction of any repair or replacement reserve requirements
imposed by a Facility Mortgagee or Facility Mortgage Documents shall be credited on a dollar for dollar basis against the
mandatory expenditure obligations of Tenant for such applicable Facility(ies) under Section 9.1(e). During the Term of this
Master Lease and provided that no Event of Default shall have occurred and be continuing hereunder, Tenant shall, subject to the
terms and conditions of such Facility Mortgage Reserve Account and the requirements of the Facility Mortgagee(s) thereunder
(and the related Facility Mortgage Documents), have access to and the right to apply or use (including for reimbursement) to the
same extent as Landlord all monies held in each such Facility Mortgage Reserve Account for the purposes and subject to the
limitations for which such Facility Mortgage Reserve Account is maintained, and Landlord agrees to reasonably cooperate with
Tenant in connection therewith. Landlord hereby acknowledges that funds deposited by Tenant in any Facility Mortgage Reserve
Account are the property of Tenant and Landlord is obligated to return the portion of such funds not previously released to Tenant
within fifteen (15) days following the earlier of (x) the expiration or earlier termination of this Master Lease with respect to such
applicable Facility, (y) the maturity or earlier prepayment of the applicable Facility Mortgage and obligations secured thereby, or
(z) an involuntary prepayment or deemed prepayment arising out of the acceleration of the amounts due to a Facility Mortgagee
or secured under a Facility Mortgage as a result of the exercise of remedies under the applicable Facility Mortgage or Facility
Mortgage Documents; provided, however, that the foregoing shall not be deemed or construed to limit or prohibit Landlord’s
right to bring any damage claim against Tenant for any breach of its obligations under this Master Lease that may have resulted in
the loss of any impound funds held by a Facility Mortgagee.
ARTICLE XXXII
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32.1 Hazardous Substances- Facilities other than 1 Jackpot. Notwithstanding anything contained herein to
the contrary, the following provisions shall apply to all Leased Property and Facilities other than the Leased Properties and
Facilities constituting 1 Jackpot:
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(a) 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
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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.
(b) 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, cleanup, removal, 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 any Hazardous Substance in, on, under or removed from the
Leased Property, including any complaints, notices, warnings or assertions of violations in connection therewith.
(c) 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
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.
(d) 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, resulting from or incident to, directly or indirectly, before (except to the extent first
discovered after the end of the Term) or during (but not after) the Term or such portion thereof during which the Leased Property
is leased to Tenant (i) the production, 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,
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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:
(e) in investigating any and all matters relating to the Handling of any Hazardous Substances, in, on, from, under
or about the Leased Property;
(f) in bringing the Leased Property into compliance with all Legal Requirements; and
(g) 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
written 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.
(h) 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 written 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, 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
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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.
32.2 1 Jackpot. Notwithstanding anything contained in this Master Lease to the contrary, the following
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provisions shall apply solely with respect to 1 Jackpot:
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(a) Hazardous Substances. Tenant shall not allow any Hazardous Substance to be located, stored, disposed of
or released in, on, under or about the 1st Jackpot or incorporated into the 1st Jackpot Facilities; provided, however, that
Hazardous Substances may be brought, kept, used or disposed of in, on or about the 1st Jackpot 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, including construction and maintenance of the facilities similar to the applicable Facility or to the extent in
existence at any Facility, but only to the extent the same are brought, kept, used and disposed of in strict compliance with Legal
Requirements. Tenant shall not allow the 1st Jackpot 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 1st
Jackpot and in compliance with applicable Legal Requirements.
(b) 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 1st Jackpot or any adjacent property; (ii) any enforcement, cleanup, removal, or other governmental
or regulatory action instituted, completed or threatened with respect to the 1st Jackpot; (iii) any claim made or threatened by any
Person against Tenant or the 1st Jackpot 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 any Hazardous Substance in, on, under or removed from the 1st Jackpot, including
any complaints, notices, warnings or asserted violations in connection therewith.
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(c) Remediation. If Tenant becomes aware of a violation of any Legal Requirement relating to any Hazardous
Substance in, on, under or about 1 Jackpot or any adjacent property first occurring from and after the Effective Date, or if
Tenant, Landlord or 1 Jackpot becomes subject to any order of any federal, state or local agency to repair, close, detoxify,
decontaminate or otherwise remediate 1 Jackpot, Tenant shall promptly notify Landlord of such event and, subject to
Section 32.2(e) below, at its sole cost and expense, cure such violation or effect such repair, closure, detoxification,
decontamination or other remediation (or if migrating from adjacent properties or otherwise the responsibility of a third party,
with Landlord’s consent not to be unreasonably withheld, shall use commercially reasonable efforts to take appropriate legal
action to cause the third party to do so). 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, upon prior written
notice to Tenant, to carry out such action and to recover from Tenant all of Landlord’s reasonable costs and expenses incurred in
connection therewith. In such an event, Tenant shall allow Landlord
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and Landlord’s agents to have reasonable access to 1 Jackpot at reasonable times in order to carry out Landlord’s remediation
activities.
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(d) Indemnity by Tenant. Except as otherwise provided in this Amendment, Tenant shall indemnify, defend,
protect, save, hold harmless, and reimburse Landlord and Landlord’s Affiliates, employees, agents and representatives
(“Indemnitees”) 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 such Indemnitees) incurred in connection with, arising out of, resulting from or incident to, directly or indirectly,
during (but not before, subject to Section 32.2(e), or after) the Term or such portion thereof during which 1 Jackpot is leased to
Tenant (i) the production, use, generation, storage, treatment, transporting, disposal, discharge, release or other handling or
disposition of any Hazardous Substances from, in, on or about 1 Jackpot (collectively, “Handling”), including the effects of
such Handling of any Hazardous Substances on any Person or property within or outside the boundaries of 1 Jackpot, and (ii)
the presence of any Hazardous Substances in, on, under or about 1 Jackpot, solely to the extent such were introduced after May
1, 2017, and (iii) the violation of any Environmental Law by Tenant or any third party other than Landlord acting on behalf of
Tenant. “Environmental Costs” include interest, costs of response, removal, remedial action, containment, cleanup, investigation,
abatement, encapsulation, design, engineering and construction, damages (including actual and consequential damages) for
personal injuries and for injury or contamination 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. For purposes of this Article XXXII, “Environmental
Laws” shall include: 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, without
limitation, the use, generation, manufacture, production, storage, release, discharge, disposal, handling, treatment, removal,
decontamination, cleanup, transportation or regulation of any Hazardous Substance, including, without limitation, such applicable
provisions in 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. 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 32.2(d) which is not cured within any applicable cure period, Tenant shall reimburse Landlord for any and all reasonable
costs and expenses incurred by Landlord under the terms of this Amendment in connection with, arising out of, resulting from or
incident to, directly or indirectly, during (but not before or after, except with respect to any period of time in which the Tenant or
its Affiliates were in possession and control of 1 Jackpot) the Term or such portion thereof during which 1 Jackpot is leased to
Tenant of the following:
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(i) In investigating any and all matters relating to the Handling of any Hazardous Substances, in, on, from, under
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or about 1 Jackpot;
(ii) In bringing 1 Jackpot into compliance with all Legal Requirements; and
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(iii) 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 1 Jackpot or off-site other than in
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the ordinary course of the business conducted at 1 Jackpot 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 written 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.
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(e) Indemnity by Landlord. Notwithstanding anything set forth in this Article XXXII to the contrary, Landlord
shall be responsible for and shall indemnify, defend, protect, save, hold harmless, and reimburse Tenant and Tenant’s Affiliates,
employees, agents and representatives (“Tenant Indemnitees”) for, from and against any and all 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
Tenant Indemnitees) incurred in connection with, arising out of, resulting from or incident to, directly or indirectly, before or
during (but not after) the Term or such portion thereof, any Pre-Existing Environmental Conditions (as hereinafter defined),
provided that such Environmental Costs (including but not limited to the cost of investigation, removal, remediation, restoration,
abatement or encapsulation of any Pre-Existing Environmental Conditions in accordance with applicable Environmental Law) are
not incurred solely as a result of or in connection with any discretionary renovation, remodeling or expansion activities
performed or to be performed by Tenant in, on or about 1 Jackpot during the Term, in which case Tenant shall be solely
responsible for, and shall indemnify, defend, protect, save, hold harmless and reimburse any Indemnitees for, such Environmental
Costs in accordance with this Article XXXII; provided, however, that any maintenance, repair, Capital Improvements or other
alterations, modifications and/or additions undertaken by Tenant that is required under the Master Lease or is required in order to
comply with any and all Legal Requirements shall not be considered discretionary renovation, remodeling or expansion activities.
Should any test boring or other investigatory work by or for Tenant reveal the presence of Pre-Existing Environmental
Conditions, such test boring or other investigative work shall not be considered to be part of any discretionary renovation,
remodeling or expansion activities of Tenant (and therefore Environmental Costs associated with the investigation, removal,
remediation, restoration, abatement or encapsulation of such Pre-Existing Environmental Conditions shall be borne by Landlord)
unless and until Tenant makes an affirmative decision to proceed with such discretionary renovation, remodeling or expansion
activities, in which case Tenant shall be solely responsible for the Environmental Costs associated with the investigation,
removal, remediation, restoration, abatement or encapsulation of such Pre-Existing Environmental Conditions revealed
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by such test boring or other investigatory work, in accordance with this Article XXXII. “Pre-Existing Environmental
Conditions” means (i) any condition that may exist at or on 1 Jackpot on or prior to May 1, 2017 with respect to contamination
of soil, surface or ground waters, stream sediments, and every other environmental media, (ii) any Hazardous Substances located
in, on or about 1 Jackpot on or prior to May 1, 2017 and (iii) any Hazardous Substances that have migrated from 1 Jackpot
prior to May 1, 2017.
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(f) 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, in a
reasonable manner and upon not less than five (5) days’ written notice to Tenant, except in the case of an emergency in which
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event no notice shall be required, to conduct an inspection of 1 Jackpot to determine the existence or presence of Hazardous
Substances on or about 1 Jackpot. Landlord shall have the right to enter and inspect 1 Jackpot, conduct any testing, sampling
and analyses it deems necessary and shall have the right to inspect materials brought into 1 Jackpot. Landlord may, in its
discretion, retain such experts to conduct the inspection, perform the tests referred to herein, and to prepare a written report in
connection therewith. All reasonable costs and expenses incurred by Landlord under this Section 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 the Master Lease. The
obligations set forth in this Article shall survive the expiration or earlier termination of the Master Lease.
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(g) 1 Jackpot Casino Tunica. Notwithstanding anything to contrary contained herein, Pre-Existing
Environmental Conditions present in the hotel at the 1 Jackpot property are not covered the provisions of Section 32.2(e) above.
Tenant has assumed responsibility for, and Landlord hereby consents to, the destruction and removal of the hotel building.
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ARTICLE XXXIII
33.1 Memorandum of Lease. Landlord and Tenant shall enter into one or more short form memoranda of this
Master Lease, in form suitable for recording in each county or other applicable location in which the Leased Property is located.
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.
33.2 Reserved.
33.3 Tenant Financing. If, in connection with granting any Permitted Leasehold Mortgage or entering into a
Debt Agreement, Tenant shall reasonably request (A)
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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, or (B) reasonable amendments or modifications to this Master Lease
as a condition thereto, Landlord hereby agrees to execute and deliver the same so long as any such amendments or modifications
do not (i) increase Landlord’s monetary obligations under this Master Lease, (ii) adversely increase Landlord’s non-monetary
obligations under this Master Lease in any material respect, (iii) diminish Landlord’s rights under this Master Lease in any
material respect, (iv) adversely impact the value of the Leased Property or (v) adversely impact Landlord’s (or any Affiliate of
Landlord’s) tax treatment or position.
34.1 Expert Valuation Process.
ARTICLE XXXIV
(a) In the event that the opinion of an “Expert” is required under this Master Lease and Landlord and Tenant
have not been able to reach agreement on such Person after at least ten (10) days of good faith negotiations, then either party shall
each have the right to seek appointment of the Expert by the “Appointing Authority,” as defined below, by writing to the
Appointing Authority and asking it to serve as the Appointing Authority and appoint the Expert. The Appointing Authority shall
appoint an Expert who is independent of the parties and has at least ten (10) years of experience valuing commercial real estate
and/or in leasing or other matters, as applicable with respect to any of the matters to be determined by the Expert.
(b) The “Appointing Authority” shall be (i) the Institute for Conflict Prevention and Resolution (also known as,
and shall be defined herein as, the “CPR Institute”), unless it is unable to serve, in which case the Appointing Authority shall be
(ii) the American Arbitration Association (“AAA”) under its Arbitrator Select Program for non-administered arbitrations or
whatever AAA process is in effect at the time for the appointment of arbitrators in cases not administered by the AAA, unless it
is unable to serve, in which case (iii) the parties shall have the right to apply to any court of competent jurisdiction to appoint an
Appointing Authority or an Expert in accordance with the court’s power to appoint arbitrators. The CPR Institute and the AAA
shall each be considered unable to serve if it no longer exists, or if it no longer provides neutral appointment services, or if it does
not confirm (in form or substance) that it will serve as the Appointing Authority within thirty (30) days after receiving a written
request from either Landlord or Tenant to serve as the Appointing Authority, or if, despite agreeing to serve as the Appointing
Authority, it does not confirm its Expert appointment within sixty (60) after receiving such written request. The Appointing
Authority’s appointment of the Expert shall be final and binding upon the parties. The Appointing Authority shall have no power
or authority except to appoint the Expert, and no rules of the Appointing Authority shall be applied to the valuation or other
determination of the Expert other than the rules necessary for the appointment of the Expert.
(c) Once the Expert is finally selected, either by agreement of the parties or by confirmation to the parties from
the Appointing Authority, the Expert will determine the matter in question, by proceeding as follows:
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(i) In the case of an Expert required for the purpose of Section 1.4, each of Landlord and Tenant shall have ten
(10) days to submit to the Expert its position as to the remaining useful life of the applicable Barge-Based Facility and any
materials it wishes the Expert to consider when determining the remaining useful life of the applicable Barge-Based
Facility. The Expert, in his or her sole discretion, shall consider any and all materials that he or she deems relevant to
making such determination, except that there shall be no live hearings and the parties shall not be permitted to take
discovery. The Expert may submit written questions or information requests to the parties, and the parties may respond
with written materials within a time frame agreed by the parties or, absent agreement by the parties, set by the Expert. The
Expert shall render his or her determination of the remaining useful life of the applicable Barge-Based Facility in writing
and it shall be final and binding on the parties.
(ii) In the case of an Expert required for any other purpose, including without limitation under Section 13.2 and
Section 36.2(a) hereof, each of Landlord and Tenant shall have a period of ten (10) days to submit to the Expert its
position as to the Maximum Foreseeable Loss, as to the replacement cost of the Facilities as of the date of the expiration
of this Master Lease and as to the appropriate per annum yield for leases between owners and operators of Gaming
Facilities at the time in question (or as to any other matter to be resolved by an Expert hereunder), as the case may be, and
any materials each of Landlord and Tenant wishes the Expert to consider when determining such Maximum Foreseeable
Loss, replacement cost of the Facilities and the appropriate per annum yield for leases between owners and operators of
Gaming Facilities (or as to any other matter to be resolved by an Expert hereunder), and the Expert will then make the
relevant determination, by a “baseball arbitration” proceeding with the Expert 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, except that in the case of a determination in respect of a dispute under Section 36.2(a), the
Expert in its discretion may choose the position of one party with respect to the replacement cost of the Facilities as of the
date of the expiration of this Master Lease and the position of the other party with respect to the appropriate per annum
yield for leases between owners and operators of Gaming Facilities at the time in question), which shall then be binding
on the parties hereto. The Expert, in his or her sole discretion, shall consider any and all materials that he or she deems
relevant, except that there shall be no live hearings and the parties shall not be permitted to take discovery. The Expert
may submit written questions or information requests to the parties, and the parties may respond with written materials
within a time frame agreed by the parties or, absent agreement by the parties, set by the Expert.
(d) All communications between a party and either the Appointing Authority or the Expert shall also be copied
to the other party. The parties shall cooperate in good faith to facilitate the valuation or other determination by the Expert.
(e) The costs of any Appointing Authority or Expert engaged under Section 34.1(c)(i) of this Master Lease shall
be shared equally by Landlord and Tenant. If Landlord pays
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such Expert or Appointing Authority, fifty percent (50%) of such costs shall be Additional Charges hereunder and if Tenant pays
such Expert or Appointing Authority, fifty percent (50%) of such costs shall be a credit against the next Rent payment hereunder.
The costs of any Appointing Authority or Expert engaged with respect to any issue under Section 34.1(c)(ii) of this Master Lease
shall be borne by the party against whom the Expert rules on such issue. If Landlord pays such Expert or Appointing Authority
and is the prevailing party, such costs shall be Additional Charges hereunder and if Tenant pays such Expert or Appointing
Authority and is the prevailing party, such costs shall be a credit against the next Rent payment hereunder.
ARTICLE XXXV
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 express courier
service, by facsimile transmission or by an overnight express service to the following address:
To Tenant:
With a copy to:
(that shall not
constitute notice)
To Landlord:
Penn Tenant, LLC c/o
Penn Entertainment, Inc.
825 Berkshire Boulevard, Suite 200
Wyomissing, Pennsylvania 19610
Attention: Chief Legal Officer
Facsimile: (610) 373-4966
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Zachary S. Podolsky, Esq.
Mark A. Koenig, Esq.
Facsimile: (212) 403-2000
and
Ballard Spahr LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103
Attention: Joseph W. Weill, Esq.
Facsimile: (856) 761-1020
GLP Capital, L.P.
c/o Gaming and Leisure Properties, Inc.
845 Berkshire Blvd., Suite 200
Wyomissing, Pennsylvania 19610
Attention: Brandon Moore, Esq.
Facsimile: (610) 401-2901
And with copy to
(which shall
not constitute notice):
Goodwin Procter LLP
The New York Times Building
New York, New York 10018
Attention: Yoel Kranz, Esq.
Facsimile: (215) 355-333
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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.
ARTICLE XXXVI
36.1 Transfer of Tenant’s Property and Operational Control of the Facilities. Upon the written request (an
“End of Term Gaming Asset Transfer Notice”) of Landlord either immediately prior to or in connection with the expiration or
earlier termination of the Term, or of Tenant in connection with a termination of this Master Lease that occurs (i) either on the
last date of the Initial Term or the last date of any Renewal Term, or (ii) in the event Landlord exercises its right to terminate this
Master Lease or repossess the Leased Property in accordance with the terms of this Master Lease and, provided that, in each of
the foregoing clauses (i) or (ii), Tenant complies with the provisions of Section 36.3, Tenant shall transfer (or cause to be
transferred) upon the expiration of the Term, or as soon thereafter as Landlord shall request, the business operations (which will
include a two (2) year transition license for tradenames and trademarks used at the Facilities) conducted by Tenant and its
Subsidiaries at the Facilities (including, for the avoidance of doubt, all Tenant’s Property relating to each of the Facilities) to a
successor lessee or operator (or lessees or operators) of the Facilities (collectively, the “Successor Tenant”) designated pursuant
to Section 36.2 for consideration to be received by Tenant (or its Subsidiaries) from the Successor Tenant in an amount equal to
the fair market value of such business operations (which will include a two (2) year transition license for tradenames and
trademarks used at the Facilities) conducted at the Facilities and Tenant’s Property (including any Tenant Capital Improvements
not funded by Landlord in accordance with Section 10.3) (the “Gaming Assets FMV”) as negotiated and agreed by Tenant and
the Successor Tenant; provided, however, that in the event an End of Term Gaming Asset Transfer Notice is delivered hereunder,
then notwithstanding the expiration or earlier termination of the Term, until such time that Tenant transfers the business
operations (which will include a two (2) year transition license for tradenames and trademarks used at the Facilities) conducted at
the Facilities and Tenant’s Property to a Successor Tenant, Tenant shall (or shall cause its Subsidiaries to) continue to (and
Landlord shall permit Tenant to maintain possession of the Leased Property to the extent necessary to) operate the Facilities in
accordance with the applicable terms of this Master Lease and the course and manner in which Tenant (or its Subsidiaries) has
operated the Facilities prior to the end of the Term (including, but not limited to, the payment of Rent hereunder). If Tenant and a
potential Successor Tenant designated by Landlord cannot agree on the Gaming Assets FMV within a reasonable time not to
exceed thirty (30) days after receipt of an End of Term Gaming Asset Transfer Notice hereunder, then such Gaming Assets FMV
shall be determined, and Tenant’s transfer of Tenant’s Property to a Successor Tenant in consideration for a payment in such
amount shall be determined and transferred, in accordance with the provisions of Section 36.2.
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36.2 Determination of Successor Lessee and Gaming Assets FMV.
If not effected pursuant to Section 36.1, then the determination of the Gaming Assets FMV and the transfer of
Tenant’s Property to a Successor Tenant in consideration for the Gaming Assets FMV shall be effected by (i) first, determining in
accordance with Section 36.2(a) the rent that Landlord would be entitled to receive from Successor Tenant assuming a lease term
of ten (10) years (the “Successor Tenant Rent”) pursuant to a lease agreement containing substantially the same terms and
conditions of this Master Lease (other than, in the case of a new lease at the end of the final Renewal Term, the terms of this
Article XXXVI, which will not be included in such new lease), (ii) second, identifying and designating in accordance with the
terms of Section 36.2(b), a pool of qualified potential Successor Tenants (each, a “Qualified Successor Tenant”) prepared to
lease the Facilities at the Successor Tenant Rent and to bid for the business operations (which will include a two (2) year
transition license for tradenames and trademarks used at the Facilities) conducted at the Facilities and Tenant’s Property, and (iii)
third, in accordance with the terms of Section 36.2(c), determining the highest price a Qualified Successor Tenant would agree to
pay for Tenant’s Property and setting such highest price as the Gaming Assets FMV in exchange for which Tenant shall be
required to transfer Tenant’s Property and Landlord will enter into a lease with such Qualified Successor Tenant on substantially
the same terms and conditions of this Master Lease (other than, in the case of a new lease at the end of the final Renewal Term,
the terms of this Article XXXVI, which will not be included in such new lease) through the remaining term of this Master Lease
(assuming that this Master Lease will not have terminated prior to its natural expiration at the end of the final Renewal Term) or
ten (10) years, whichever is greater for a rent calculated pursuant to Section 36.2(a) hereof. Notwithstanding anything in the
contrary in this Article XXXVI, the transfer of Tenant’s Property will be conditioned upon the approval of the applicable
regulatory agencies of the transfer of the Gaming Licenses and any other gaming assets to the Successor Tenant and/or the
issuance of new gaming licenses as required by applicable Gaming Regulations and the relevant regulatory agencies both with
respect to operating and suitability criteria, as the case may be.
(a) Determining Successor Tenant Rent. Landlord and Tenant shall first attempt to agree on the amount of
Successor Tenant Rent that it will be assumed Landlord will be entitled to receive for a term of ten (10) years and pursuant to a
lease containing substantially the same terms and conditions of this Master Lease (other than, in the case of a new lease at the end
of the final Renewal Term, the terms of this Article XXXVI, which will not be included in such new lease). If Landlord and
Tenant cannot agree on the Successor Tenant Rent amount within a reasonable time not to exceed sixty (60) days after receipt of
an End of Term Gaming Asset Transfer Notice hereunder, then the Successor Tenant Rent shall be set as follows:
(i) for the period preceding the last day of the calendar month in which the thirty-fifth (35 ) anniversary of the
Commencement Date occurs, then the annual Successor Tenant Rent shall be an amount equal to the annual Rent that
would have accrued under the terms of this Master Lease for such period (assuming the Master Lease will have not been
terminated prior to its natural expiration); and
th
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(ii) for the period following the last day of the calendar month in which the thirty-fifth (35 ) anniversary of the
Commencement Date occurs, then the Successor Tenant Rent shall be calculated in the same manner as Rent is calculated
under this Master Lease (and based on the average Net Revenues for the trailing five (5) year period), except that the
annual Building Base Rent component of Base Rent shall be the product of (a) the replacement cost of the Facilities as of
the date of expiration of this Master Lease as determined by an Expert pursuant to Section 34.1(c)(ii), and (b) an
appropriate per annum yield for leases between owners and operators of Gaming Facilities at the time in question as
determined by an Expert pursuant to Section 34.1(c)(ii).
th
(b) Designating Potential Successor Tenants. Landlord will select one and Tenant will select three (for a total of
up to four) potential Qualified Successor Tenants prepared to lease the Facilities for the Successor Tenant Rent, each of whom
must meet the criteria established for a Discretionary Transferee (and none of whom may be Tenant or an Affiliate of Tenant (it
being understood and agreed that there shall be no restriction on Landlord or any Affiliate of Landlord from being a potential
Qualified Successor Tenant), except in the case of termination of the Master Lease on the last day of the calendar month in which
the thirty-fifth (35 ) anniversary of the Commencement Date occurs). Landlord and Tenant must designate their proposed
Qualified Successor Tenants within ninety (90) days after receipt of an End of Term Gaming Asset Transfer Notice hereunder. In
the event that Landlord or Tenant fails to designate such party’s allotted number of potential Qualified Successor Tenants, the
other party may designate additional potential Qualified Successor Tenants such that the total number of potential Qualified
Successor Tenants does not exceed four; provided that, in the event the total number of potential Qualified Successor Tenants is
less than four, the transfer process will still proceed as set forth in Section 36.2(c) below.
th
(c) Determining Gaming Assets FMV. Tenant will have a three (3) month period to negotiate an acceptable sales
price for Tenant’s Property with one of the Qualified Successor Tenants, which three (3) month period will commence
immediately upon the conclusion of the steps set forth above in Section 36.2(b). If Tenant does not reach an agreement prior to
the end of such three (3) month period, Landlord shall conduct an auction for Tenant’s Property among the four potential
successor lessees, and Tenant will be required to transfer Tenant’s Property to the highest bidder.
36.3 Operation Transfer. Upon designation of a Successor Tenant (pursuant to either Section 36.1 or 36.2, as
the case may be), Tenant shall reasonably cooperate and take all actions reasonably necessary (including providing all reasonable
assistance to Successor Tenant) to effectuate the transfer of operational control of the Facilities to Successor Tenant in an orderly
manner so as to minimize to the maximum extent possible any disruption to the continued orderly operation of the Facilities for
its Primary Intended Use. Notwithstanding the expiration or earlier termination of the Term and anything to the contrary herein,
unless Landlord consents to the contrary, until such time that Tenant transfers Tenant’s Property and operational control of the
Facilities to a Successor Tenant in accordance with the provisions of this Article XXXVI, Tenant shall (or shall cause its
Subsidiaries to) continue to (and Landlord shall permit Tenant to maintain possession of the Leased Property to the extent
necessary to) operate the Facilities in accordance with the applicable terms of this Master Lease and the course and manner in
which
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Tenant (or its Subsidiaries) has operated the Facilities prior to the end of the Term (including, but not limited to, the payment of
Rent hereunder). Concurrently with the transfer of Tenant’s Property to Successor Tenant, Landlord and Successor Tenant shall
execute a new master lease in accordance with the terms as set forth in the final clause of the first sentence of Section 36.2
hereof.
ARTICLE XXXVII
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 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
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
39.1 Anti-Terrorism Representations. Tenant hereby represents and warrants that neither Tenant, nor, to the
knowledge of Tenant, any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target 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) designated by the President or OFAC pursuant to 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”). Tenant hereby represents and warrants to Landlord that no funds
tendered to Landlord by Tenant under the terms of this Master Lease are or will be directly or indirectly derived from activities
that may
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contravene U.S. federal, state or international laws and regulations, including anti-money laundering laws. If the foregoing
representations are untrue at any time during the Term and Landlord suffers actual damages as a result thereof, an Event of
Default will be deemed to have occurred, without the necessity of notice to Tenant.
Tenant will not 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 use or occupancy of the Leased Property.
A breach of the representations contained in this Section 39.1 by Tenant as a result of which Landlord suffers actual damages
shall constitute a material breach of this Master Lease and shall entitle Landlord to any and all remedies available hereunder, or at
law or in equity.
ARTICLE XL
40.1 GLP 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 Agreement 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) 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) furnish or render any services to the subtenant, assignee or manager or manage or operate the Leased Property so
subleased, assigned or managed; (iii) sublet, assign or enter into a management arrangement for the Leased Property to any
Person (other than a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code) of GLP) in which Tenant,
Landlord or GLP owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5)
of the Code); or (iv) 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 Landlord’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
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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 GLP’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 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
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.
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.
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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 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 41.6 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 Amendment and Restatement; Entire Agreement. This Master Lease hereby amends and restates and
replaces the Original Master Lease in its entirety and this Master Lease and the Exhibits and Schedules attached 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.
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41.8 Headings. 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.
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.
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. In addition, Landlord agrees to, at Tenant’s sole cost and expense, reasonably cooperate
with all applicable gaming authorities in connection with the administration of their regulatory jurisdiction over Tenant’s Parent,
Tenant and its Subsidiaries, including the provision of such documents and other information as may be requested by such
gaming authorities relating to Tenant or any of its Subsidiaries or to this Master Lease and which are within Landlord’s
reasonable control to obtain and provide.
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, each of Tenant,
Landlord, and each of Tenant’s or Landlord’s 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 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
Regulations and Liquor Laws and only to the extent that required approvals (including prior approvals) are obtained from the
requisite governmental authorities.
(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
ACTIVE/119768607.18
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Liquor Authority in connection with the administration of their regulatory jurisdiction over the parties hereto, 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.
SIGNATURES ON FOLLOWING PAGE
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as of the date first written above.
IN WITNESS WHEREOF, this Amended and Restated Master Lease has been executed by Landlord and Tenant
LANDLORD:
GLP CAPITAL, L.P.
By: Gaming and Leisure Properties, Inc., its general partner
By: /s/ Brandon J. Moore
Name: Brandon J. Moore
Title: Executive Vice President, General Counsel & Secretary
ACTIVE/119768607.18
S-1
TENANT:
PENN TENANT, LLC
By: /s/ Chris Rogers
Name: Chris Rogers
Title: Authorized signatory by and on behalf of PENN Entertainment. Inc., its sole member
ACTIVE/119768607.18
S-2
Facility Name
Argosy Casino Alton
(excluding riverboat)
Argosy Casino Riverside
EXHIBIT A
LIST OF FACILITIES
Facility Address
#1 Piasa Street Alton, Illinois
Use
Dockside Gaming Barge-Based
Facility
777 Argosy Parkway Riverside, Missouri Dockside Gaming Barge-Based
Boomtown Casino (excluding Skrmetta Ground Lease
property)
Hollywood Casino Bangor
676 Bayview Avenue Biloxi, Mississippi
500 Main Street Bangor, Maine
Hollywood Casino Bay St. Louis
Hollywood Casino at Charles Town Races
Hollywood Casino Lawrenceburg
(excluding employee parking lease)
Hollywood Casino Penn National Race Course
Hollywood Casino St. Louis
Hollywood Casino Tunica
Zia Park Casino (excluding property listed on Schedule 1.1
paragraph 1)
st
1 Jackpot Casino
Hollywood Gaming at Dayton Raceway
711 Hollywood Blvd. Bay St. Louis,
Mississippi
750 Hollywood Drive Charles Town, West
Virginia
777 Hollywood Blvd. Lawrenceburg,
Indiana
777 Hollywood Blvd. Grantville,
Pennsylvania
777 Casino Center Drive Maryland
Heights, Missouri
1150 Casino Strip Resort Blvd.
Robinsonville, Mississippi
3901 West Millen Drive Hobbs, New
Mexico
1450 Bally Boulevard, Tunica Resorts, MS
38664
4701 Wagner Ford Road Dayton, Ohio
Hollywood Gaming at
Mahoning Valley Race Course
655 North Canfield-Niles Road
Youngstown, Ohio
ACTIVE/119768607.18
A-1
Facility
Dockside Gaming Barge-Based
Facility
Land-based Gaming and Harness
Racing
Land-based Gaming Barge-Based
Facility
Land-based Gaming and
Thoroughbred Racing
Dockside Gaming Barge-Based
Facility
Land-based Gaming and
Thoroughbred Racing
Dockside Gaming Barge-Based
Facility
Dockside Gaming Barge-Based
Facility
Land-based Gaming and
Thoroughbred Racing
Dockside Gaming Barge-Based
Facility
Land-based Gaming and Harness
Racing
Land-based Gaming and
Thoroughbred Racing
MASTER LEASE
ACTIVE/119970514.22
TABLE OF CONTENTS
TO
MASTER LEASE
Article I
1.1 Leased Property
1.2 Single, Indivisible Lease
1.3 Term
1.4 Renewal Terms
Article II
2.1 Definitions
Article III
3.1 Rent
3.2 Late Payment of Rent
3.3 Method of Payment of Rent
3.4 Net Lease
Article IV
4.1 Impositions
4.2 Utilities
4.3 Impound Account
Article V
5.1 No Termination, Abatement, etc
Article VI
6.1 Ownership of the Leased Property
6.2 Tenant’s Property
6.3 Guarantors; Tenant’s Property
Article VII
7.1 Condition of the Leased Property
7.2 Use of the Leased Property
7.3 Development Facilities – Aurora and Joliet
7.4 Competing Business.
Article VIII
8.1 Representations and Warranties
8.2 Compliance with Legal and Insurance Requirements, etc
8.3 Zoning and Uses
8.4 Compliance with Ground Lease.
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Page
2
2
3
3
3
6
6
28
28
28
29
29
29
29
30
31
31
31
32
32
33
34
34
34
35
35
36
38
38
38
39
40
Article IX
9.1 Maintenance and Repair
9.2 Encroachments, Restrictions, Mineral Leases, etc
Article X
10.1 Construction of Capital Improvements to the Leased Property
10.2 Construction Requirements for All Capital Improvements
10.3 Landlord’s Right of First Offer to Fund
10.4 Tenant Projects – Columbus Facility
10.5 Tenant Projects - M Resort
Article XI
11.1 Liens
Article XII
12.1 Permitted Contests
Article XIII
13.1 General Insurance Requirements
13.2 Maximum Foreseeable Loss
13.3 Additional Insurance
13.4 Waiver of Subrogation
13.5 Policy Requirements
13.6 Increase in Limits
13.7 Blanket Policy
13.8 No Separate Insurance
Article XIV
14.1 Property Insurance Proceeds
14.2 Tenant’s Obligations Following Casualty
14.3 No Abatement of Rent
14.4 Waiver
14.5 Insurance Proceeds Paid to Facility Mortgagee
14.6 Termination of Master Lease; Abatement of Rent
Article XV
15.1 Condemnation.
15.2 Award Distribution
15.3 Temporary Taking
15.4 Condemnation Awards Paid to Facility Mortgagee
15.5 Termination of Master Lease; Abatement of Rent
Article XVI
16.1 Events of Default
16.2 Certain Remedies
16.3 Damages
16.4 Receiver
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40
40
42
43
43
44
45
47
48
48
48
51
51
51
51
53
54
54
54
55
55
55
55
55
56
56
57
57
57
58
58
58
58
59
59
59
59
62
63
64
16.5 Waiver
16.6 Application of Funds
Article XVII
17.1 Permitted Leasehold Mortgagees.
17.2 Landlord’s Right to Cure Tenant’s Default
17.3 Landlord’s Right to Cure Debt Agreement
Article XVIII
18.1 Sale of the Leased Property
Article XIX
19.1 Holding Over
Article XX
20.1 Risk of Loss
Article XXI
21.1 General Indemnification
Article XXII
22.1 Subletting and Assignment
22.2 Permitted Assignments
22.3 Permitted Sublease Agreements
22.4 Required Assignment and Subletting Provisions
22.5 Costs
22.6 No Release of Tenant’s Obligations; Exception
22.7 Perryville and Meadows Severance Leases
22.8 Specified Developer Default; Project Developer Default
Article XXIII
23.1 Officer’s Certificates and Financial Statements.
23.2 Public Offering Information
23.3 Financial Covenants
23.4 Landlord Obligations
Article XXIV
24.1 Landlord’s Right to Inspect
Article XXV
25.1 No Waiver
Article XXVI
26.1 Remedies Cumulative
Article XXVII
27.1 Acceptance of Surrender
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64
64
65
65
72
72
73
73
74
74
74
74
74
74
75
75
75
78
78
79
79
80
84
84
84
87
88
88
89
89
89
89
89
89
89
89
Article XXVIII
28.1 No Merger
Article XXIX
29.1 Conveyance by Landlord
Article XXX
30.1 Quiet Enjoyment
Article XXXI
31.1 Landlord’s Financing
31.2 Attornment
31.3 Compliance with Facility Mortgage Documents
Article XXXII
32.1 Hazardous Substances
Article XXXIII
33.1 Memorandum of Lease
33.2 Reserved.
33.3 Tenant Financing
Article XXXIV
34.1 Expert Valuation Process.
Article XXXV
35.1 Notices
Article XXXVI
36.1 Transfer of Tenant’s Property and Operational Control of the Facilities
36.2 Determination of Successor Lessee and Gaming Assets FMV.
36.3 Operation Transfer
Article XXXVII
37.1 Attorneys’ Fees
Article XXXVIII
38.1 Brokers
Article XXXIX
39.1 Anti-Terrorism Representations
Article XL
40.1 GLP REIT Protection
Article XLI
41.1 Survival
41.2 Severability
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89
90
90
90
90
90
90
91
92
93
93
96
96
96
96
96
96
98
98
99
99
100
102
102
102
102
102
103
103
103
103
104
104
104
41.3 Non-Recourse
41.4 Successors and Assigns
41.5 Governing Law
41.6 Waiver of Trial by Jury
41.7 Amendment and Restatement; Entire Agreement
41.8 Headings
41.9 Counterparts
41.10 Interpretation
41.11 Time of Essence
41.12 Further Assurances
41.13 Gaming Regulations
41.14 State Specific Provisions.
41.15 Multiple Parties; Joint and Several Liability
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104
105
105
105
106
106
106
106
106
106
106
107
108
EXHIBITS AND SCHEDULES
EXHIBIT A – LIST OF FACILITIES
EXHIBIT B – LEGAL DESCRIPTIONS
EXHIBIT C – GAMING LICENSES
EXHIBIT D – FORM OF GUARANTY
EXHIBIT E-I – FORM OF NONDISTURBANCE AND ATTORNMENT AGREEMENT
EXHIBIT E-II – FORM OF SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT
SCHEDULE 1A – DISCLOSURE ITEMS
SCHEDULE 1.1 – EXCLUSIONS FROM LEASED PROPERTY
SCHEDULE 6.3 – GUARANTORS UNDER THE MASTER LEASE
ACTIVE/119970514.22
vi
MASTER LEASE
This MASTER LEASE (the “Master Lease”) is entered into as of February 21, 2023, but is effective as of January 1,
2023 (the “Effective Date”), by and between GLP Capital, L.P. (together with its permitted successors and assigns, "GLP"), PA
Meadows LLC, a Delaware limited liability company (together with its permitted successors and assigns, "PA Meadows"), CCR
Pennsylvania Racing, LLC, a Pennsylvania limited liability company (together with its permitted successors and assigns, "CCR",
and together with GLP and PA Meadows, jointly and severally, “Landlord”), Penn Tenant LLC (together with its permitted
successors and assigns, “Penn Tenant”), Penn Cecil Maryland, LLC, a Maryland limited liability company (together with its
permitted successors and assigns, “Perryville Tenant”), and PNK Development 33, LLC, a Delaware limited liability company
(together with its permitted successors and assigns, “Meadows Tenant”, and together, jointly and severally, with Penn Tenant
and Perryville Tenant, “Tenant”).
RECITALS
A. Capitalized terms used in this Master Lease and not otherwise defined herein are defined in Article II hereof.
B. Immediately prior to the execution hereof, Affiliates of Landlord leased portions of the Leased Property to
Affiliates of Tenant pursuant to those certain (i) Master Lease dated as of July 1, 2021 (as amended from time to time, the
“Perryville Lease”) by and between GLP Holdings, Inc., a Pennsylvania corporation (“GLP Holdings”) and Perryville Tenant in
respect of that certain facility commonly known as the Hollywood Casino Perryville located in Perryville, Maryland (the
“Perryville Facility”), (ii) Master Lease dated as of September 9, 2016 (as amended from time to time, the “Meadows Lease”
and together with the Perryville Lease, the “Terminated Leases”) by and among PA Meadows, LLC, WTA II, LLC, CCR
Pennsylvania Racing, LLC (collectively, “Meadows Landlord”) and Meadows Tenant in respect of that certain facility
commonly known as the Hollywood Casino at the Meadows located in Washington, Pennsylvania (the “Meadows Facility”), and
(iii) Master Lease dated as of November 1, 2013 (as amended from time to time, the “Penn Master Lease”, and together with the
Meadows Lease and the Perryville Lease, the “Prior Leases”) between Landlord and Penn Tenant in respect of those certain
facilities commonly known as the Hollywood Casino Aurora located in Aurora, Illinois (the “Existing Aurora Facility”), the
Hollywood Casino Joliet located in Joliet, Illinois (the “Existing Joliet Facility”), the Hollywood Casino Columbus located in
Columbus, Ohio (the “Columbus Facility”), the Hollywood Casino Toledo located in Toledo, Ohio (the “Toledo Facility”), and
the M Resort and Spa & Casino located in Henderson, Nevada (the “M Resort”, and together with the Existing Aurora Facility,
the Existing Joliet Facility, the Columbus Facility and the Toledo Facility, the “Transferred Facilities”), among other gaming
facilities.
C. Immediately prior to the execution hereof, Affiliates of Landlord and Tenant have terminated the Terminated
Leases and have amended and restated the Penn Master Lease to remove the Transferred Facilities therefrom. It is the parties’
intent that effective immediately after such termination of the Terminated Leases and the removal of the Transferred
Facilities from the Penn Master Lease, the Perryville Facility, the Meadows Facility and the Transferred Facilities are hereby
transferred under this Master Lease, so that there be no gap in Tenant’s leasehold interest in the Perryville Facility, the Meadows
Facility and the Transferred Facilities.
D. As a result of the foregoing, Landlord and Tenant hereby desire 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.
E. A list of the seven (7) facilities covered by this Master Lease as of the date hereof is attached hereto as
Exhibit A (each a “Facility,” and collectively, the “Facilities”).
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
ARTICLE I
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 interest in and to the following with respect to each of the
Facilities (collectively, the “Leased Property”):
(a) the real property or properties described in Exhibit B attached hereto (collectively, the “Land”);
(b) all buildings, structures, Fixtures (as hereinafter defined) 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, and, to the extent constituting “real property” as
that term is defined in Treasury Regulation §1.856-3(d), all buildings, structures, Fixtures and other improvements of every kind
now or hereafter located on the leased real property or the barges serving as foundations or points of access connected thereto
(collectively, the “Leased Improvements”);
(c) all easements, rights and appurtenances relating to the Land and the Leased Improvements; and
(d) all equipment, machinery, fixtures, and other items of property, including all components thereof, that (i) are
now or hereafter located in, on or used in connection with and permanently affixed to or otherwise incorporated into the Leased
Improvements and (ii) qualify as Long-Lived Assets, together with all replacements, modifications, alterations and additions
thereto (collectively, the “Fixtures”);
in each case, with respect to clauses 1.1(b) and 1.1(d) above, to the extent constituting “real property” as that term is defined in
Treasury Regulation §1.856-3(d).
ACTIVE/119970514.22
2
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 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,
Leased Property shall exclude those items referenced on Schedule 1.1.
1.2 Single, Indivisible Lease. 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 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. 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 include one or more additional Facilities
as part of the Leased Property and such future addition to 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.
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 the Effective Date (the “Commencement Date”)
and will end on October 31, 2033, subject to renewal as set forth in Section 1.4 below.
1.4 Renewal Terms. The term of this Master Lease may be extended for three (3) separate “Renewal Terms” of
five (5) years each, if: (a) 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 it desires to exercise its right to extend this Master Lease for one (1)
Renewal Term; (b) no Event of Default shall have occurred and be continuing on the date Landlord receives the Renewal Notice
(the “Exercise Date”) or on the last day of the then current Term; and (c) all other requirements set forth in this Section 1.4 have
been complied with (including, but not limited to, the requirement that the Term of this Master Lease remain at all times co-
terminus with the term of the Sister Master Lease). During any such Renewal Term,
ACTIVE/119970514.22
3
except as otherwise specifically provided for herein, all of the terms and conditions of this Master Lease shall remain in full force
and effect.
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; provided, however, that the exercise of each Renewal Term shall be applicable with respect
to each Barge-Based Facility only if an Expert has confirmed prior to the applicable Exercise Date (but no more than 180 days
prior thereto) that exercising such Renewal Term with respect to such Barge-Based Facility would not cause the aggregate Term
to exceed eighty percent (80%) of the useful life of such Barge-Based Facility as measured from the Commencement Date or the
estimated residual fair market value of such Barge-Based Facility at the end of the applicable Renewal Term to be less than 20%
of the fair market value of such Barge-Based Facility as of the Commencement Date without regard to inflation or deflation. If
exercising any Renewal Term would cause the aggregate Term to exceed eighty percent (80%) of any Barge-Based Facility’s
estimated useful life, then (i) the remainder of the Leased Property (other than any Barge-Based Facility for which the aggregate
Term would exceed eighty percent (80%) of such Barge-Based Facility’s estimated useful life or the estimated residual fair
market value of such Barge-Based Facility at the end of the applicable Renewal Term to be less than twenty percent (20%) of the
fair market value of such Barge-Based Facility as of the Commencement Date without regard to inflation or deflation) shall
continue to be demised hereunder for the entire applicable Renewal Term, and (ii) each such Barge-Based Facility shall be
included in such Renewal Term only for the period of time that is within (and does not exceed) eighty percent (80%) of the
estimated useful life of such Barge-Based Facility and the estimated residual fair market value of such Barge-Based Facility at
the end of the applicable Renewal Term shall be not less than twenty percent (20%) of the fair market value of such Barge- Based
Facility as of the Commencement Date without regard to inflation or deflation and shall thereafter not be a part of the Leased
Property hereunder and the Base Rent due hereunder shall thereafter be reduced to account for the period of time each such
Barge-Based Facility is not part of the Leased Property by an amount determined in accordance with the formula set forth in
Section 14.6 hereof and such Barge-Based Facility and the Tenant’s Property related thereto shall be sold at fair market value,
with Landlord entitled to the value of the Leased Property relating to such Barge-Based Facility and Tenant entitled to the value
of the Tenant’s Property relating to such Barge-Based Facility.
Notwithstanding anything contained herein to the contrary, Landlord and Tenant hereby acknowledge and agree that the Term of
this Master Lease shall at all times be co-terminus with the term of the Sister Master Lease. As a result thereof, in the event (1)
Tenant elects to extend the Term of this Master Lease for one or more Renewal Terms, Penn Tenant shall be required to exercise
its options to renew the term of the Sister Master Lease, and (2) Penn Tenant elects to extend the term of the Sister Master Lease,
Tenant shall be required to exercise its options to renew the Term under the Master Lease so that the Term under this Master
Lease at all times remains co-terminus under the Sister Master Lease. In the event Penn Tenant delivers a Renewal Notice (as
defined in the Sister Master Lease) for a Renewal Term (as defined in the Sister Master Lease) in accordance with the Sister
Master Lease and Tenant fails to timely deliver a Renewal Notice hereunder, Tenant shall automatically be deemed to have
delivered a Renewal Notice under this Section 1.4.
ACTIVE/119970514.22
4
ARTICLE II
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.
AAA: As defined in Section 34.1(b).
Accounts: All accounts, including deposit accounts and any Facility Mortgage Reserve Account (to the extent
actually funded by Tenant), 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.
Additional Rent: Additional Rent shall be comprised of the following amounts:
(A) Commencing on the Additional Rent Commencement Date, if any, in respect of the Columbus Project, an
amount equal to the Additional Columbus Rent (as defined in the Development Agreement); provided, however, that (1) in no
event shall there be double payment of Additional Columbus Rent due under the Development Agreement and Additional Rent
due under this Clause (A), and (2) commencing on the November 1 first occurring on or after the Columbus Opening Date (the
“First Columbus Escalation Date”) and on each anniversary thereafter during the Term, the Additional Rent due under this
clause (A) shall increase to an annual amount equal to the sum of (i) the Additional Rent due under this Clause (A) for the
immediately preceding Lease Year, plus (ii) an amount equal to 1.5% of the
st
ACTIVE/119970514.22
5
Additional Rent due under this Clause (A) for the immediately preceding Lease Year. Notwithstanding the foregoing, it being
agreed that solely for calculating the escalated Additional Rent under this clause (A) on the First Columbus Escalation Date (but
not on any future escalation date), such Additional Rent shall be an amount equal to the sum of (x) the annual Additional
Columbus Rent amount as calculated under the Development Agreement, plus (y) (1) 1.5% of the amount set forth in the
preceding clause (x) multiplied by (2) a fraction the numerator of which is the amount of days from the Additional Rent
Commencement Date in respect of the Columbus Project through the calendar day that is immediately prior to the First
Columbus Escalation Date and the denominator of which is 365 days; plus
st
(B) Commencing on the Additional Rent Commencement Date, if any, in respect of the M Resort, an amount
equal to the Additional M Resort Rent (as defined in the Development Agreement); provided, however, that (1) in no event shall
there be double payment of Additional M Resort Rent due under the Development Agreement and Additional Rent due under this
Clause (B), and (2) commencing on the November 1 first occurring on or after the M Resort Opening Date (the “First M Resort
Escalation Date”) and on each anniversary thereafter during the Term, the Additional Rent due under this Clause (B) shall
increase to an annual amount equal to the sum of (i) the Additional Rent due under this Clause (B) for the immediately preceding
Lease Year, plus (ii) an amount equal to 1.5% of the Additional Rent under this Clause (B) for the immediately preceding Lease
Year. Notwithstanding the foregoing, it being agreed that solely for calculating the escalated Additional Rent under this clause
(B) on the First M Resort Escalation Date (but not on any future escalation date), such Additional Rent shall be an amount equal
to the sum of (x) the annual Additional M Resort Rent amount as calculated under the Development Agreement, plus (y) (1)
1.5% of the amount set forth in the preceding clause (x) multiplied by (2) a fraction the numerator of which is the amount of days
from the Additional Rent Commencement Date in respect of the M Resort Project through the calendar day that is immediately
prior to the First M Resort Escalation Date and the denominator of which is 365 days; plus
st
(C) Commencing on the Additional Rent Commencement Date in respect of the Aurora Project, an amount equal
to the Additional Aurora Rent (as defined in the Development Agreement); provided, however, that (1) in no event shall there be
double payment of Additional Aurora Rent due under the Development Agreement and Additional Rent due under this Clause
(C), and (2) commencing on the November 1 first occurring on or after the Aurora Opening Date (the “First Aurora Escalation
Date”) and on each anniversary thereafter during the Term, the Additional Rent due under this Clause (C) shall increase to an
annual amount equal to the sum of (i) the Additional Rent due under this Clause (C) for the immediately preceding Lease Year,
plus (ii) an amount equal to 1.5% of the Additional Rent due under this Clause (C) for the immediately preceding Lease Yea.
Notwithstanding the foregoing, it being agreed that that solely for calculating the escalated Additional Rent under this clause (C)
on the First Aurora Escalation Date (but not on any future escalation date), such Additional Rent amount equal to the sum of (x)
the annual Additional Aurora Rent amount as calculated under the Development Agreement, plus (y) (1) 1.5% of the amount set
forth in the preceding clause (x) multiplied by (2) a fraction the numerator of which is the amount of days from the Additional
Rent Commencement Date in respect of the Aurora Project through the calendar day that is
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immediately prior to the First Aurora Escalation Date and the denominator of which is 365 days; plus
(D) Commencing on the Additional Rent Commencement Date in respect of the Joliet Project, an amount equal to
the Additional Joliet Rent (as defined in the Development Agreement); provided, however, that (1) in no event shall there be
multiple counting of Additional Joliet Rent due under the Development Agreement or rent or other charges due under the Joliet
Development Lease, and Additional Rent due under this Clause (D), and (2) commencing on the November 1 first occurring on
or after the Joliet Opening Date (the “First Joliet Escalation Date”) and on each anniversary thereafter during the Term, the
Additional Rent due under this Clause (D) shall increase to an annual amount equal to the sum of (i) the Additional Rent due
under this Clause (D) for the immediately preceding Lease Year, plus (ii) an amount equal to 1.5% of the Additional Rent due
under this Clause (D) for the immediately preceding Lease Year. Notwithstanding the foregoing, it being agreed that solely for
calculating the escalated Additional Rent under this clause (A) on the First Joliet Escalation Date (but not on any future
escalation date), such Additional Rent shall be an amount equal to the sum of (x) the annual Additional Joliet Rent amount as
calculated under the Development Agreement, (y) 1.5% of the amount set forth in the preceding clause (x), and (z) the amount set
forth in the preceding clause (y) multiplied by a fraction the numerator of which is the amount of days from the Joliet Opening
Date through the calendar day that is the end of the Lease Year in which the Additional Rent Commencement Date occurred and
the denominator of which is 365 days.
st
Additional Rent shall be subject to further adjustment as and to the extent provided in Section 14.6.
Additional Rent Commencement Date: With respect to (i) the Aurora Project, the Aurora Opening Date, (ii) the M
Resort Project, the M Resort Opening Date, (iii) the Columbus Project, the Columbus Opening Date, and (iv) the Joliet Project,
the Joliet Opening Date.
Adjusted Revenue: For any Test Period, Net Revenue (i) minus expenses other than Specified Expenses and (ii)
plus Specified Proceeds, if any; provided, however, that for purposes of calculating Adjusted Revenue, Net Revenue shall not
include Gaming Revenues, Retail Sales or Promotional Allowances of any subtenants of Tenant or any deemed payments under
subleases of this Master Lease, licenses or other access rights from Tenant to its operating subsidiaries. Adjusted Revenue 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 since the beginning of any Test Period of Tenant as if each such increase or decrease had
been affected on the first day of such Test Period. Notwithstanding the foregoing, with respect to the deduction of expenses
related to or arising from Onsite iGaming under subsection (i) above, only Eligible iGaming Expenses may be deducted.
Adjusted Revenue to Rent Ratio: As at any date of determination, the ratio for any period of Adjusted Revenue to
Rent. For purposes of calculating the Adjusted Revenue to Rent Ratio, Adjusted Revenue shall be calculated on a pro forma basis
(and shall be calculated to give effect to (x) pro forma adjustments reasonably contemplated by Tenant and (y) such other pro
forma adjustments consistent with Regulation S-X under the Securities Act) to give effect to any
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material acquisitions and material asset sales consummated by the Tenant or any Guarantor during any Test Period of Tenant 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, (i) 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 and (ii) in the event Rent is to be increased in connection with the addition or inclusion of a Long-Lived Asset that is
projected to increase Adjusted Revenue, such Rent increase shall not be taken into account in calculating the Adjusted Revenue
to Rent Ratio until the first fiscal quarter following the completion of the installation or construction of such Long-Lived Assets.
Affected Project: Means the Facility at which a Specified Developer Default has occurred.
Affiliate: When used with respect to any corporation, limited liability company, or partnership, the term “Affiliate”
shall mean any person which, directly or indirectly, controls or is controlled by or is under common control with such
corporation, limited liability company or partnership. 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.
Appointing Authority: As defined in Section 34.1(b).
Aurora Opening Date: The Opening Date (as defined in the Development Agreement) for the Aurora Project.
Award: All compensation, sums or anything of value awarded, paid or received on a total or partial Taking.
Barge-Based Facility: Each Facility identified in Exhibit A, as amended from time to time, as a “Barge-Based
Facility.”
Base Rent:
(A) Commencing on the Effective Date, an annual amount equal to two hundred thirty-two million, one hundred
seventy thousand Dollars ($232,170,000); provided, however, that commencing on November 1, 2023 and on each anniversary
thereafter during the 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, plus (ii) an amount equal to 1.5% of the Base Rent for the immediately preceding Lease Year.
(B) Notwithstanding, and in addition to, the foregoing, on the commencement of Lease Year beginning
November 1, 2027, the Base Rent then in effect shall (i) escalate in
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8
accordance with Clause (A) above and then be increased by an amount equal to one million four hundred thousand Dollars
($1,400,000) (the Base Rent as adjusted by the forgoing increase, the “Adjusted Base Rent”), and (ii) the Adjusted Base Rent
shall thereafter continue to escalate annually in accordance with Clause (A) above.
(C) As applicable during the Term, Base Rent shall be increased pursuant to Section 10.3(c) in respect of Capital
Improvements funded by Landlord (which increases shall, in each case, be subject to the Escalations provided in the foregoing
clauses (A) and (B)).
Base Rent shall be subject to further adjustment as and to the extent provided in Section 14.6 and Section 22.7.
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 that would be considered a capital improvement under GAAP, including without limitation 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, all of which shall constitute a portion
of the Leased Improvements and Leased Property hereunder in accordance with Section 10.3.
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 asset for which Tenant or any of its Subsidiaries (directly or through
Tenant’s Parent) 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 part of
any real property of Tenant or any of its Subsidiaries or any part thereof, 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 Tenant or any of its Subsidiaries or any part thereof by any governmental authority, civil or military.
Change in Control: (i) Any Person or “group” (within the meaning of Rules 13d-3 and 13d-5 under the Securities
Exchange Act of 1934, as amended from time to time, and any successor statute), (a) 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’s Parent entitled to vote in an election of directors of Tenant’s Parent, or (b) shall have caused
the election of a majority of the members of the board of directors or equivalent body of Tenant’s Parent, which such members
have not been nominated
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9
by a majority of the members of the board of directors or equivalent body of Tenant’s Parent as such were constituted
immediately prior to such election, (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), (iii) (a) Tenant ceasing to be a
wholly-owned Subsidiary (directly or indirectly) of Tenant’s Parent or (b) Tenant’s Parent ceasing to control one hundred percent
(100%) of the voting power in the Equity Interests of Tenant or (iv) Tenant’s Parent consolidates with, or merges with or into, any
Person, or any Person consolidates with, or merges with or into, Tenant’s Parent, in any such event pursuant to a transaction in
which any of the outstanding Equity Interests of Tenant’s Parent ordinarily entitled to vote in an election of directors of Tenant’s
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 Tenant’s Parent ordinarily entitled to vote in an election of directors of Tenant’s 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).
Code: The Internal Revenue Code of 1986 and, to the extent applicable, the Treasury Regulations promulgated
thereunder, each as amended from time to time.
Columbus Final Funding Notice: As defined in the Development Agreement.
Columbus Opening Date: The Opening Date (as defined in the Development Agreement) for the Columbus
Project.
Commencement Date: As defined in Section 1.3.
Competing Facility: Any Gaming Facility located within the Restricted Area 7.4(e).
Condemnation: 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.
Consolidated Interest Expense: For any period, interest expense of Tenant and its Subsidiaries that are Guarantors
for such period as determined on a consolidated basis for Tenant and its Subsidiaries that are Guarantors in accordance with
GAAP.
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,
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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 published for the beginning of each Lease Year, divided by (ii) the CPI
published for the January 1, 2013. If the product is less than one, the CPI Increase shall be equal to one.
CPR Institute: As defined in Section 34.1(b).
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 and/or its Affiliates, (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
and its 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 and opportunity to cure any breaches or
defaults by Tenant thereunder within the cure period, if any, that exists under such Debt Agreement.
Development Agreement: Means that certain Master Development Agreement to be entered into as of the date
hereof by and among Landlord and Penn Tenant.
Development Facilities: The Facilities which are identified in Exhibit A, as amended from time to time, as
“Development Facilities.”
Development Period Rent: If and to the extent payable under the Development Agreement, Development Period
Rent shall be comprised of the following amounts:
(A) Commencing upon the Initial Funding Date in respect of the Columbus Project and expiring on the Additional
Rent Commencement Date in respect of the Columbus Project, an amount equal to the Development Period Rent (as defined in
the Development Agreement) for the Columbus Project, as such amount may be increased pursuant to the terms of the
Development Agreement; plus
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(B) Commencing upon the Initial Funding Date in respect of the M Resort Project and expiring on the Additional
Rent Commencement Date in respect of the M Resort Project, an amount equal to the Development Period Rent for the M Resort
Project as such amount may be increased pursuant to the terms of the Development Agreement; plus
(C) Commencing upon the Initial Funding Date, in respect of the Aurora Project and expiring on the Additional
Rent Commencement Date in respect of the Aurora Project, an amount equal to the Development Period Rent for the Aurora
Project as such amount may be increased pursuant to the terms of the Development Agreement.
Discretionary Transferee: A transferee that meets all of the following requirements: (a) such transferee has (1) at
least five (5) years of experience (directly or through one or more of its Subsidiaries) operating or managing casinos with
revenues in the immediately preceding fiscal year of at least seven hundred fifty million Dollars ($750,000,000) (or retains a
manager with such qualifications, which manager shall not be replaced other than in accordance with Article XXII hereof) that is
not in the business, and that does not have an Affiliate in the business, of leasing properties to gaming operators, 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 and its 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’s 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 Securities and Exchange
Act of 1934, 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) other than in the case of a Permitted Leasehold Mortgagee Foreclosing Party, (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 (including pursuant to a
Change in Control under Section 22.2(iii)(x) or Section 22.2(iii)(y)), its Indebtedness to EBITDA Ratio on a consolidated basis in
accordance with GAAP is less than 8:1 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 8:1 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.
Dollars and $: The lawful money of the United States.
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EBITDA: For any Test Period, the consolidated net income or loss of the Parent Company of a Discretionary
Transferee (or, in the case of (x) a Permitted Leasehold Mortgagee Foreclosing Party, such Permitted Leasehold Mortgagee
Foreclosing Party or (y) a Discretionary Transferee that does not have a Parent Company, such Discretionary Transferee) on a
consolidated basis for such period, determined in accordance with GAAP, adjusted by excluding (1) income tax expense, (2)
consolidated interest expense (net of interest income), (3) depreciation and amortization expense, (4) any income, gains or losses
attributable to the early extinguishment or conversion of indebtedness or cancellation of indebtedness, (5) gains or losses on
discontinued operations and asset sales, disposals or abandonments, (6) impairment charges or asset write-offs including, without
limitation, those related to goodwill or intangible assets, long-lived assets, and investments in debt and equity securities, in each
case, in accordance with GAAP, (7) any non-cash items of expense (other than to the extent such non-cash items of expense
require or result in an accrual or reserve for future cash expenses), (8) extraordinary gains or losses and (9) unusual or non-
recurring gains or items of income or loss.
Effective Date Subleases: Means (i) each Specified Sublease, and (ii) each other sublease, license, or other
occupancy agreement in effect on the Effective Date constituting part of the Leased Property with respect to which Tenant is a
sublessor (or its equivalent) and for which (a) Landlord’s consent was given or (b) such sublease did not require Landlord’s
consent under the Prior Leases.
Eligible iGaming Expenses: shall mean any expenses incurred directly for Onsite iGaming, and shall not include,
(i) any expense that is associated with the development of the sports betting or iGaming applications and related products
(including, if applicable and for the sake of clarity, the amortization of any capitalized expenses), (ii) any expense associated with
the acquisition of Barstool or the initial licensing of sports betting or iGaming, (iii) start-up costs associated with the introduction
of sports betting or iGaming, (iv) research and development-type of expenses, and (v) any other indirect expenses related to
sports betting or iGaming.
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 Gaming Asset Transfer Notice: As defined in Section 36.1.
Environmental Costs: As defined in Section 32.1(d).
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
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13
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.
Equity Rights: With respect to any person, any then outstanding subscriptions, options, warrants, commitments,
preemptive rights or agreements of any kind (including any stockholders’ or voting trust agreements) for the issuance, sale,
registration or voting of any additional Equity Interests of any class, or partnership or other ownership interests of any type in,
such person; provided, however, that a debt instrument convertible into or exchangeable or exercisable for any Equity Interests
shall not be deemed an Equity Right.
Event of Default: As defined in Article XVI.
Exercise Date: As defined in Section 1.4.
Existing Aurora Facility: As defined in Recital B, which is comprised of the portion of the Leased Property
comprised of the Land described on Exhibit B as the “Existing Aurora Facility”.
Existing Joliet Facility: As defined in Recital B, which is comprised of the portion of the Leased Property
comprised of the Land described on Exhibit B as the “Existing Joliet Facility”.
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 Recital E.
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 Mortgage Reserve Account: As defined in Section 31.3(b).
Facility Mortgagee: As defined in Section 13.1.
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Financial Statements: (i) For a Fiscal Year, consolidated statements of Tenant’s Parent and its consolidated
subsidiaries (as defined by GAAP) of income, stockholders’ equity and comprehensive income and cash flows for such period
and for the period from the beginning of the Fiscal Year to the end of such period and the related consolidated balance sheet as at
the end of such period, together with the notes thereto, all in reasonable detail and setting forth in comparative form the
corresponding figures for the corresponding period in the preceding Fiscal Year and prepared in accordance with GAAP and
audited by a “big four” or other nationally recognized accounting firm, and (ii) for a fiscal quarter, consolidated statements of
Tenant’s Parent’s income, stockholders’ equity and comprehensive income and cash flows for such period and for the period from
the beginning of the Fiscal Year to the end of such period and the related consolidated balance sheet as at the end of such period,
together with the notes thereto, all in reasonable detail and setting forth in comparative form the corresponding figures for the
corresponding period in the preceding Fiscal Year and prepared in accordance with GAAP.
Fiscal Year: The annual period commencing January 1 and terminating December 31 of each year.
Fixtures: As defined in Section 1.1(d).
Foreclosure Assignment: As defined in Section 22.2(iii).
Foreclosure COC: As defined in Section 22.2(iii).
Foreclosure Purchaser: As defined in Section 31.1.
GAAP: Generally accepted accounting principles consistently applied in the preparation of financial statements, as
in effect from time to time (except with respect to any financial ratio defined or described herein or the components thereof, for
which purposes GAAP shall refer to such principles as in effect as of the date hereof).
Gaming Assets FMV: As defined in Section 36.1.
Gaming Facility: A facility at which there are operations of slot machines, table games or pari-mutuel wagering.
Gaming License: Any license, permit, approval, finding of suitability or other authorization issued by a state
regulatory agency to operate, carry on or conduct any gambling game, gaming device, slot machine, race book or sports pool on
the Leased Property, or required by any Gaming Regulation, including each of the licenses, permits or other authorizations set
forth on Exhibit C, 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, codes, decrees or
judgments, and Gaming License conditions or restrictions, 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
ACTIVE/119970514.22
15
person or entity holding a Gaming License, including, without limitation, any requirements imposed by a regulatory agency,
commission, board or other governmental body pursuant to the jurisdiction and authority granted to it under applicable law.
Gaming Revenues: As defined in the definition of Net Revenue.
GLP: Gaming and Leisure Properties, Inc.
Greenfield Project: As defined in Section 7.4(a).
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 Schedule 1A hereto.
Ground Lessor: As defined in Section 8.4(a).
Guarantor: Any entity that guaranties the payment or collection of all or any portion of the amounts payable by
Tenant, or the performance by Tenant of all or any of its obligations, under this Master Lease, including any replacement
guarantor consented to by Landlord in connection with the assignment of the Master Lease or a sublease of Leased Property
pursuant to Article XXII.
Guaranty: That certain Guaranty of Master Leases dated as of the date hereof, a form of which is attached as
Exhibit D hereto, as the same may be amended, supplemented or replaced from time to time, by and between Tenant’s Parent,
Landlord and certain direct or indirect Subsidiaries of Tenant’s Parent, Perryville Tenant and Meadows Tenant from time to time
party thereto, and any other guaranty in form and substance reasonably satisfactory to the 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 32.1(d).
Hazardous Substances: Collectively, any petroleum, petroleum product or by product or any substance, material or
waste regulated or listed pursuant to any Environmental Law.
Immaterial Subsidiary Guarantor: Any Subsidiary of Tenant having assets with an aggregate fair market value of
less than twenty-five million Dollars ($25,000,000) as of the most recent date on which Financial Statements have been delivered
to Landlord pursuant to Section 23.1(b); provided, however, that in no event shall the aggregate fair market value of the assets of
all Immaterial Subsidiary Guarantors exceed fifty million Dollars ($50,000,000) as of the most recent date on which Financial
Statements have been delivered to Landlord pursuant to Section 23.1(b).
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Impartial Appraiser: As defined in Section 13.2.
Impositions: Collectively, all taxes, including capital stock, franchise, margin and other state taxes of Landlord, ad
valorem, real estate, sales, use, single business, gross receipts, transaction privilege, rent or similar taxes; 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; ground rents (pursuant to the Ground Leases); water, sewer and other utility levies and
charges; excise tax levies; fees including license, permit, inspection, authorization and similar fees; and all other governmental
charges, in each case whether general or special, ordinary or extraordinary, or foreseen or unforeseen, of every character in
respect of the Leased Property and/or the Rent and Additional Charges and all interest and penalties thereon attributable to any
failure in payment by Tenant (other than failures arising from the acts or omissions of Landlord) which at any time prior to,
during or in respect of the Term hereof may be assessed or imposed on or in respect of or be a lien upon (i) Landlord or
Landlord’s interest in the Leased Property, (ii) the Leased Property or any part thereof or any rent therefrom or any estate, right,
title or interest therein, or (iii) 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; provided, however, that
nothing contained in this Master Lease shall be construed to require Tenant to pay (a) any tax based on net income (whether
denominated as a franchise or capital stock or other tax) imposed on Landlord or any other Person, (b) any transfer, or net
revenue tax of Landlord or any other Person except Tenant and its successors, (c) any tax imposed with respect to the sale,
exchange or other disposition by Landlord of any Leased Property or the proceeds thereof, or (d) any principal or interest on any
indebtedness on or secured by the Leased Property owed to a Facility Mortgagee for which Landlord or its Subsidiaries or GLP is
the obligor; provided, further, Impositions shall include any tax, assessment, tax levy or charge set forth in clause (a) or (b) that is
levied, assessed or imposed in lieu of, or as a substitute for, any Imposition.
Indebtedness: Of any Person, without duplication, (a) all indebtedness of such Person for borrowed money,
whether or not evidenced by bonds, debentures, notes or similar instruments, (b) all obligations of such Person as lessee under
capital leases which have been or should be recorded as liabilities on a balance sheet of such Person in accordance with GAAP,
(c) all obligations of such Person to pay the deferred purchase price of property or services (excluding trade accounts payable in
the ordinary course of business), (d) all indebtedness secured by a lien on the property of such Person, whether or not such
indebtedness shall have been assumed by such Person, (e) all obligations, contingent or otherwise, with respect to the face
amount of all letters of credit (whether or not drawn) and banker’s acceptances issued for the account of such Person, (f) all
obligations under any agreement with respect to any swap, forward, future or derivative transaction or option or similar
arrangement involving, or settled by reference to, one or more rates, currencies, commodities, equity or debt instruments or
securities or economic, financial or pricing indices or measures of economic, financial or pricing risk or value or any similar
transaction or combination of transactions, (g) all guarantees by such Person of any of the foregoing and (h) all indebtedness of
the nature described in the foregoing clauses (a)-(g) of any partnership of which such Person is a general partner.
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Indebtedness to EBITDA Ratio: As at any date of determination, the ratio of (a) Indebtedness of the applicable (x)
Discretionary Transferee or Parent Company of the Discretionary Transferee or (y) in the case of a Permitted Leasehold
Mortgagee Foreclosing Party, the Permitted Leasehold Mortgagee Foreclosing Party (such Discretionary Transferee, Parent
Company or Permitted Leasehold Mortgagee Foreclosing Party, as applicable the “Relevant Party”) on a consolidated basis, as
of such date (excluding (i) Indebtedness of the type referenced in clauses (e) or (f) of the definition of Indebtedness or
Indebtedness referred to in clauses (d) or (g) of the definition of Indebtedness to the extent relating to Indebtedness of the type
referenced in clauses (e) or (f) of the definition of Indebtedness, to (b) EBITDA 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 Relevant Party and its
Subsidiaries since the beginning of any Test Period of the Relevant Party 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 period. In addition, for the avoidance of doubt, (i) if the Relevant Party or any Subsidiary of the Relevant Party has incurred
any Indebtedness or repaid, repurchased, acquired, defeased or otherwise discharged any Indebtedness since the end of the most
recent Test Period for which financial statements are available, 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 effect to the transactions whereby the applicable Discretionary Transferee becomes party to
the Master Lease or the Change in Control transactions permitted under Sections 22.2(iii) and shall include the Indebtedness and
EBITDA of Tenant and its Subsidiaries for the relevant period.
Initial Term: As defined in Section 1.3.
Initial Funding Date: As defined in the Development Agreement.
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.
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 or investing in a diversified portfolio of businesses and companies and is organized
primarily for the purpose of making equity investments in companies.
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Joliet Improvement Transfer Date: Means the date that is the earlier to occur of (i) the date of the Joliet Final
Funding (as defined in the Development Agreement) and (i) the date that is six (6) months following the Joliet Opening Date.
Joliet Opening Date: The Opening Date (as defined in the Development Agreement) for the Joliet Project.
Land: As defined in Section 1.1(a).
Landlord: As defined in the preamble.
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
October 31, 2023, and each subsequent Lease Year for each Facility shall be each period of twelve (12) full calendar months after
the last day of the prior Lease Year.
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 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 either the Leased Property, Tenant’s
Property and all 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.
Liquor Authority: As defined in Section 41.13(a).
Liquor Laws: As defined in Section 41.13(a).
Long-Lived Assets: (i) With respect to property owned by Tenant’s Parent as of the date hereof, all property
capitalized in accordance with GAAP with an expected life of not less than fifteen (15) years as initially reflected on the books
and records of Tenant’s Parent at or about the time of acquisition thereof or (ii) with respect to those assets purchased, replaced or
otherwise maintained by Tenant after the date hereof, such asset capitalized in accordance with
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GAAP with an expected life of not less than fifteen (15) years as of or about the time of the acquisition thereof, as classified by
Tenant in accordance with GAAP.
M Resort Opening Date: The Opening Date (as defined in the Development Agreement) for M Resort.
Master Lease: As defined in the preamble.
Material Indebtedness: At any time, Indebtedness of any one or more of the Tenant (and its Subsidiaries) and any
Guarantor in an aggregate principal amount exceeding ten percent (10%) of Adjusted Revenue of Tenant and the Guarantors that
are Subsidiaries of Tenant on a consolidated basis over the most recent Test Period for which financial statements are available.
As of the date hereof, until financial statements are available for the initial Test Period, such amount shall be One Hundred,
Ninety Four Million Dollars ($194,000,000).
Maximum Foreseeable Loss: As defined in Section 13.2.
ML Developer Default: Means the occurrence of any Developer Default (as defined in the Development
Agreement) under clauses (a), (b), (e), (f), (g), (h), or (i) of Section 7.1 of the Development Agreement that does not constitute a
Project Developer Default.
M Resort Final Funding Notice: As defined in the Development Agreement.
Net Revenue: The sum of, without duplication, (i) the amount received by Tenant (and its Subsidiaries and its
subtenants) from patrons at any Facility for gaming, less refunds and free promotional play provided to the customers and
invitees of Tenant (and its Subsidiaries and subtenants) pursuant to a rewards, marketing, and/or frequent users program, and less
amounts returned to patrons through winnings at any Facility (the amounts in this clause (i), “Gaming Revenues”); and (ii) the
gross receipts of Tenant (and its Subsidiaries and subtenants) for all goods and merchandise sold, the charges for all services
performed, or any other revenues generated by Tenant (and its Subsidiaries and subtenants) in, at, or from the Leased Property for
cash, credit, or otherwise (without reserve or deduction for uncollected amounts), but excluding any Gaming Revenues (the
amounts in this clause (ii), “Retail Sales”); less (iii) the retail value of accommodations, food and beverage, and other services
furnished without charge to guests of Tenant (and its Subsidiaries and subtenants) at any Facility (the amounts in this clause (iii),
“Promotional Allowance”). For the avoidance of doubt, gaming taxes and casino operating expenses (such as salaries, income
taxes, employment taxes, supplies, equipment, cost of goods and inventory, rent, office overhead, marketing and advertising and
other general administrative costs) will not be deducted in arriving at Net Revenue. Net Revenue will be calculated on an accrual
basis for these purposes, as required under GAAP. For the absence of doubt, if Gaming Revenues, Retail Sales or Promotional
Allowances of a Subsidiary or subtenant, as applicable, are taken into account for purposes of calculating Net Revenue, any rent
received by Tenant from such Subsidiary or subtenant, as applicable, pursuant to any sublease with such Subsidiary or subtenant,
as applicable, shall not also be taken into account for purposes of calculating Net Revenues. Notwithstanding the foregoing, with
respect to any Specified Sublease, Net Revenue shall not include Gaming Revenues or Retail Sales from the subtenants under
such subleases and
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shall include the rent received by Tenant or its subsidiaries thereunder. Net Revenue shall not include online or internet-based
revenue (including online gaming or internet-based sports-related gaming, “iGaming”), except to the extent that the online or
internet-based revenue is derived from gaming, wagering or related activity that occurs while the patron is physically located at,
in or on Leased Property (“Onsite iGaming”). For the avoidance of doubt, and with respect to Onsite iGaming, Net Revenue
shall (i) not include any revenues that Tenant, Tenant’s Parent or any of their Affiliates receives from market access agreements
or “skin” agreements for iGaming between Tenant, Tenant’s Parent or any of their Affiliates and any third party, and (ii) include
all income, whether reported in net revenue or any other income statement line item of Tenant, Tenant’s Parent or any of their
Affiliates. Tenant shall be responsible for any incremental costs associated with tracking Onsite iGaming, including by way of
geo-location related technology or otherwise (collectively, “Online Tracking”). Notwithstanding the foregoing, Tenant shall not
be required to track Onsite Gaming until such time as Online Tracking is installed by Tenant at the Leased Property, which shall
be as soon as reasonably practicable but no later than six months after the launch of Onsite iGaming. In addition, Net Revenue
attributed to Onsite iGaming at each Leased Property shall not be less than $0 on an annual basis. The allocation of iGaming
Promotional Allowances for purposes of determining Net Revenue shall be limited to the same percentage as Onsite iGaming
revenue for such applicable Leased Property of total iGaming revenue; provided that iGaming Promotional Allowances shall not
exceed fifteen percent (15%) of Onsite iGaming Net Revenue.
New Aurora Land: As defined in the Development Agreement.
New Joliet Land: As defined in the Development Agreement.
New Lease: As defined in Section 1.4.
Notice: A notice given in accordance with Article XXXV.
Notice of Termination: As defined in Section 17.1(f).
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.
Overdue Rate: On any date, a rate equal to five (5) percentage points above the Prime Rate, but in no event greater
than the maximum rate then permitted under applicable law.
Parent Company: With respect to any Discretionary Transferee, any Person (other than an Investment Fund) (x) as
to which such Discretionary Transferee is a Subsidiary; and (y) which is not a Subsidiary of any other Person (other than an
Investment Fund).
Payment Date: Any due date for the payment of the installments of Rent or any other sums payable under this
Master Lease.
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Permitted Leasehold Mortgage: A document creating or evidencing an encumbrance on Tenant’s leasehold interest
(or a subtenant’s sublease hold 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 that forecloses on this
Master Lease and assumes this Master Lease or a Subsidiary of a Permitted Leasehold Mortgagee 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.
PLM Lease: As defined in Section 17.1(f).
Pre-Opening Expense: With respect to any fiscal period, the amount of expenses (including Consolidated Interest
Expense) incurred with respect to capital projects which are appropriately classified as “pre-opening expenses” on the applicable
financial statements of Tenant’s Parent and its Subsidiaries for such period.
Primary Intended Use: Gaming and/or pari-mutuel use consistent, with respect to each Facility, with its current use
(as specified on Exhibit A attached hereto as it may be amended from time to time), or with prevailing gaming industry use at any
time (including all ancillary uses consistent with gaming industry practice such as hotels, restaurants, bars, etc.).
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.
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Proceeding: As defined in Section 23.1(b)(v).
Prohibited Persons: As defined in Section 39.1.
Project Developer Default: As defined in the Development Agreement.
Promotional Allowance: As defined in the definition of Net Revenue.
Qualified Successor Tenant: As defined in Section 36.2.
Redevelopment Agreement: As defined in the Development Agreement.
Regulatory Approval Supporting Information: Information regarding Landlord (and, without limitation, its officers
and Affiliates), Tenant (and, without limitation, its officers and Affiliates), or a Severance Lease Tenant (and, without limitation,
its officers and Affiliates), as applicable, in each case, that is reasonably requested by Tenant from Landlord or by Landlord from
Tenant, in each case, to the extent necessary to secure Required Governmental Approvals.
Renewal Notice: As defined in Section 1.4(a).
Renewal Term: A period for which the Term is renewed in accordance with Section 1.4.
Rent: Collectively, the Base Rent, the Development Period Rent, and the Additional Rent, as in effect from time to
time.
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.
Restricted Area: The geographical area that at any time during the Term is within (A) a seven (7) mile radius of
any Facility covered under this Master Lease at such time and located in the State of Nevada, or (B) a sixty (60) mile radius of
any Facility covered under this Master Lease at such time and located outside the State of Nevada.
Restricted Payment: Dividends (in cash, property or obligations) on, or other payments or distributions on account
of, or the setting apart of money for a sinking or other analogous fund for, or the purchase, redemption, retirement, repurchase or
other acquisition of, any Equity Interests or Equity Rights (other than outstanding securities convertible into Equity Interests) of
Tenant, but excluding dividends, payments or distributions paid through the issuance of additional shares of Equity Interests and
any redemption, retirement or exchange of any Equity Interest through, or with the proceeds of, the issuance of Equity Interests
of Tenant.
Retail Sales: As defined in the definition of Net Revenue.
SEC: The United States Securities and Exchange Commission.
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Securities Act: The Securities Act of 1933, as amended, or any successor statute, and the rules and regulations
promulgated thereunder.
Severance Facility: As defined in Section 22.7.
Severance Transfer Date: The date of the closing of the applicable Severance Transfer and the effective date of the
Severance Lease.
Severance Lease: As defined in Section 22.7.
Severance Lease Rent: As of the Effective Date, initially, an amount equal to (a) in respect of the Meadows
Facility, seven million eight hundred fifty eight thousand dollars ($7,858,000) and (b) in respect of the Perryville Facility, twenty-
four million eight hundred fifty seven thousand dollars ($24,857,000), which amount shall escalate annually at the same time and
in the same manner as described in Clause (A) of the definition of Base Rent. The Severance Lease Rent to be included in any
Severance Lease shall be the Severance Lease included hereunder as such amount may have escalated between the Effective Date
and the Severance Transfer Date.
Specified Developer Default: Means the occurrence of a Developer Default arising under Section 6 of the
Development Agreement as a result of an unpermitted discontinuance of a Project (as defined under the Development
Agreement).
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).
Sister Master Lease: Means that certain Amended and Restated Master Lease dated as of the Effective Date by and
between Landlord and Penn Tenant, as the same may be amended, modified, or amended and restated from time to time.
Specified Debt Agreement Default: Any event or occurrence under a Debt Agreement or Material Indebtedness
that enables or permits the lenders or holders (or
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Representatives of such lenders or holders) to accelerate the maturity of the Indebtedness outstanding under a Debt Agreement or
Material Indebtedness.
Specified Expenses: For any Test Period, (i) Rent incurred for the same Test Period, and (ii) the (1) income tax
expense, (2) consolidated interest expense, (3) depreciation and amortization expense, (4) any nonrecurring, unusual, or
extraordinary items of income, cost or expense, including but not limited to, (a) any gains or losses attributable to the early
extinguishment or conversion of indebtedness, (b) gains or losses on discontinued operations and asset sales, disposals or
abandonments, and (c) impairment charges or asset write-offs including, without limitation, those related to goodwill or
intangible assets, long-lived assets, and investments in debt and equity securities, in each case, pursuant to GAAP, (5) any non-
cash items of expense (other than to the extent such non-cash items of expense require an accrual or reserve for future cash
expenses (provided that if such accrual or reserve is for contingent items, the outcome of which is subject to uncertainty, such
non-cash items of expense may, at the election of the Tenant, be added to net income and deducted when and to the extent
actually paid in cash)), (6) any Pre-Opening Expenses, (7) transaction costs for the spin-off of GLP, the entry into this Master
Lease, the negotiation and consummation of the financing transactions in connection therewith and the other transactions
contemplated in connection with the foregoing consummated on or before the date hereof, (8) non-cash valuation adjustments,
(9) any expenses related to the repurchase of stock options, and (10) expenses related to the grant of stock options, restricted
stock, or other equivalent or similar instruments; in the case of each of (1) through (10), of Tenant and the Subsidiaries of Tenant
that are Guarantors on a consolidated basis for such period.
Specified Proceeds: For any Test Period, to the extent not otherwise included in Net Revenue, the amount of
insurance proceeds received during such period by Tenant or the Guarantors in respect of any Casualty Event; provided, however,
that for purposes of this definition, (i) with respect to any Facility subject to such Casualty Event which had been in operation for
at least one complete fiscal quarter the amount of insurance proceeds plus the Net Revenue (excluding such insurance proceeds),
if any, attributable to the Facility subject to such Casualty Event for such period shall not exceed an amount equal to the Net
Revenue attributable to such Facility for the Test Period ended immediately prior to the date of such Casualty Event (calculated
on a pro forma annualized basis to the extent such Facility was not operational for the full previous Test Period) and (ii) with
respect to any Facility subject to such Casualty Event which had not been in operation for at least one complete fiscal quarter, the
amount of insurance proceeds plus the Net Revenue attributable to such Facility for such period shall not exceed the Net Revenue
reasonably projected by Tenant to be derived from such Facility for such period.
Specified Sublease: Those leases set forth on Schedule 1A with respect to which Tenant or its Affiliate is a
sublessor as of (i) September 9, 2016 with respect to any part of the Meadows Facility, (ii) July 1, 2021 with respect to any part
of the Perryville Facility, or (iii) November 1, 2013 with respect to any part of the Transferred Facilities.
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.
Successor Tenant: As defined in Section 36.1.
Successor Tenant Rent: As defined in Section 36.2.
Taking: As defined in Section 15.1(a).
Tenant: As defined in the preamble.
Tenant Capital Improvement: A Capital Improvement funded by Tenant, as compared to Landlord.
Tenant COC: As defined in Section 22.2(iii).
Tenant Parent COC: As defined in Section 22.2(iii).
Tenant Representatives: As defined in Section 23.4.
Tenant’s Parent: PENN Entertainment, Inc.
Tenant’s Property: With respect to each Facility, all assets (other than the Leased Property and property owned by
a third party) 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.
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.
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.
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Unsuitable for Its Primary Intended Use: A state or condition of any Facility such that by reason of damage or
destruction, or a partial taking by 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.
ARTICLE III
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 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’s Parent or one of its 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. The parties will agree on an allocation of the Base Rent on a declining basis for federal income tax purposes within the
115/85 safe harbor of Section 467 of the Code, assuming a projected schedule of Base Rent for this purpose.
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) five percent (5%) 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
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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 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.
ARTICLE IV
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 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 GLP 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,
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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 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 the 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.
(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. 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
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into agreements that will encumber the Leased Property 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 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); 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 or a default by Tenant of Section 23.3(b) hereof (to be exercised by thirty (30) days’ written notice to Tenant); and
provided Tenant is not already being required to impound such payments in accordance with the requirements of Section 31.3(b)
below, 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.
ARTICLE V
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
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waives all rights arising from any occurrence whatsoever that 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) that 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.
ARTICLE VI
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 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.
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(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, (y) Tenant reporting
its Rent 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 shall, during the entire Term, own (or lease) and maintain (or cause its
Subsidiaries to own (or lease) and maintain) on the Leased Property adequate and sufficient Tenant’s Property, and shall maintain
(or cause its Subsidiaries to maintain) all of such Tenant’s Property in good order, condition and repair, in all cases as shall be
necessary and appropriate in order to operate the Facilities for the Primary Intended Use in compliance with all applicable
licensure and certification requirements and in compliance with all applicable Legal Requirements, Insurance Requirements and
Gaming Regulations. If any of Tenant’s Property requires replacement in order to comply with the foregoing, Tenant shall replace
(or cause a Subsidiary to replace) it with similar property of the same or better quality at Tenant’s (or such Subsidiary’s) sole cost
and expense. Subject to the foregoing, Tenant and its Subsidiaries may sell, transfer, convey or otherwise dispose of Tenant’s
Property (other than Gaming Licenses and subject to Section 6.3) in their discretion in the ordinary course of its business and
Landlord shall have no rights to such Tenant’s Property. Tenant shall, upon
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Landlord’s request, from time to time but not more frequently than one time per Lease Year, provide Landlord with a list of the
material Tenant’s Property located at each of the Facilities. In the case of any such Tenant’s Property that is leased (rather than
owned) by Tenant (or its Subsidiaries), Tenant shall use commercially reasonable efforts to ensure that the lease agreements
pursuant to which Tenant (or its Subsidiaries) leases such Tenant’s Property are assignable to third parties in connection with any
transfer by Tenant (or its Subsidiaries) to a replacement lessee or operator at the end of the Term. Tenant shall remove all of
Tenant’s Property from the Leased Property at the end of the Term, except to the extent Tenant has transferred ownership of such
Tenant’s Property to a Successor Tenant or Landlord. Any Tenant’s Property left on the Leased Property at the end of the Term
whose ownership was not transferred to a Successor Tenant shall be deemed abandoned by Tenant and shall become the property
of Landlord.
6.3 Guarantors; Tenant’s Property. Each of Tenant’s Parent and each of Tenant’s Subsidiaries set forth on
Schedule 6.3 shall be a Guarantor under this Agreement and shall execute and deliver to the Landlord the Guaranty attached
hereto as Exhibit E. In addition, if any material Gaming License or other license or other material asset necessary to operate any
portion of the Leased Property is owned by a Subsidiary, Tenant shall within two (2) Business Days after the date such Subsidiary
acquires such Gaming License, other license or other material asset, (a) notify the Landlord thereof and (b) cause such Subsidiary
(if it is not already a Guarantor) to become a Guarantor by executing the Guaranty in form and substance reasonably satisfactory
to Landlord.
ARTICLE VII
7.1 Condition of the Leased Property. Tenant acknowledges (i) that immediately prior to the Effective Date it
was in possession, pursuant to the Prior Lease, of all of the Leased Property, (ii) that immediately prior to the date the New Joliet
Land is added to this Master Lease, it was in possession of the New Joliet Land pursuant to the Joliet Development Lease (as
defined in the Development Agreement), (iii) receipt and delivery of possession of the Leased Property, and (iv) 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 (except as included in the disclosures on Schedule 1A) 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, and Tenant shall be solely responsible for the repair and maintenance of any condition of the Leased Property
in existence on the Effective Date unless otherwise expressly set forth in this Master Lease. 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
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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 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 withhold in its sole discretion. Landlord acknowledges that operation of each Facility for its Primary Intended Use
generally requires a Gaming License under applicable Gaming Regulations and that without such a license neither Landlord nor
GLP may operate, control or participate in the conduct of the gaming and/or racing operations at the Facilities.
(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 Property to be used as a Gaming Facility after the expiration or earlier
termination of the Term.
(c) Tenant shall neither suffer nor permit the Leased Property or any portion thereof to be used in such a manner
as (i) might reasonably tend to impair Landlord’s title thereto or to any portion thereof or (ii) may make possible a claim of
adverse use or possession, or an implied dedication of the Leased Property or any portion thereof.
(d) Except in instances of casualty or condemnation, Tenant shall continuously operate each of the Facilities for
the Primary Intended Use. Tenant in its discretion shall be permitted to cease operations at a Facility or Facilities if such cessation
would not reasonably be expected to have a material adverse effect on Tenant, the Facilities, or on the Leased Property, taken as a
whole, provided that no Event of Default has occurred and is continuing immediately prior to or immediately after the date that
operations are ceased or as a result of such cessation.
7.3 Development Facilities – Aurora and Joliet Landlord and Penn Tenant have entered into that certain
Development Agreement pursuant to which Tenant shall construct, pursuant to and in accordance with the terms set forth in the
Development Agreement, new Gaming Facilities (i) upon the New Aurora Land (the “Aurora Project”) and (ii) upon the New
Joliet Land (the “Joliet Project”). Subject to and in compliance with, the Development Agreement, Landlord and Tenant hereby
agree as follows:
(a) Aurora Project. Concurrently with Landlord’s acquisition of any portion of the New Aurora Land (which
may be acquired in one or multiple transactions), Landlord and Tenant agree that the Leased Property shall include such New
Aurora Land and all New Aurora Improvements (as defined in the Development Agreement) existing or constructed as part of the
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Aurora Project on such New Aurora Land. Upon the inclusion of any New Aurora Land as part of the Lease Property, Tenant
shall thereafter diligently construct and complete the New Aurora Improvements in accordance with the Development
Agreement. Any failure to do so in a manner that constitutes a Developer Default under the Development Agreement shall be
deemed a default under this Master Lease as a ML Developer Default; provided, however, if such Developer Default is either a
Project Developer Default or a Specified Developer Default, then Landlord’s remedies under this Master Lease shall be limited to
those remedies set forth in Section 22.8 of this Master Lease. In addition to the foregoing, Landlord and Tenant hereby agree to
enter into such additional amendments to this Master Lease as reasonably necessary to effectuate the transactions contemplated
under the Redevelopment Agreement and the Development Agreement, including, but not limited to an additional amendment to
this Master Lease removing the Existing Aurora Facility and the Hollywood Aurora Ground Leases specified on Schedule 1A
from the description of the Leased Property either upon Landlord’s conveyance thereof pursuant to the terms of the
Redevelopment Agreement or upon Landlord’s election delivered by written notice to Tenant (provided, however, the Landlord
shall not have the right to require the removal of the Existing Aurora Facility prior to the occurrence of the Additional Rent
Commencement Date in respect of the Aurora Project); provided, however, in no event shall the Rent payable hereunder be
decreased as a result thereof. In addition, following the occurrence of the Additional Rent Commencement Date in respect of the
Aurora Project, Tenant shall demolish the buildings and improvements, at its sole cost and expense, then located on the Existing
Aurora Facility pursuant to, and in accordance with, the terms and conditions set forth in the Redevelopment Agreement;
provided, however, Tenant may not commence any such demolition work without providing Landlord with not less than seven (7)
days advance written notice prior to commencing any such demolition work.
(b) Joliet Project. On the Joliet Improvement Transfer Date, on the terms and conditions each more particularly
set forth in the Development Agreement (i) Landlord and Tenant shall terminate the Joliet Development Lease, (ii) enter into an
amendment to this Master Lease removing the Existing Joliet Facility from the description of the Leased Property and adding the
New Joliet Improvements (as defined in the Development Agreement) and the New Joliet Land to the description of the Leased
Property, which amendment shall address any outstanding Additional Joliet Rent, additional rent or other charged due and owing
under the Joliet Development Lease such that there is not multiple counting of such amount under the Joliet Development Lease
and this Master Lease, (iii) Guarantor and Landlord shall amend and restate the existing Guaranty to reflect the addition of the
New Joliet Land and New Joliet Improvements to this Master Lease, and (iv) the New Joliet Improvements and New Joliet Land
shall be deemed to be owned by Landlord. Landlord and Tenant hereby agree to enter into such additional amendments to this
Master Lease as reasonably necessary to effectuate the transactions contemplated under the Development Agreement; provided,
however, in no event shall the Rent payable hereunder be decreased as a result thereof.
7.4 Competing Business.
(a) Tenant’s Obligations for Greenfields. Tenant agrees that during the Term, neither Tenant nor any of its
Affiliates shall build or otherwise participate in the development of
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a new Gaming Facility (including a facility that has been shut down for a period of more than twelve (12) months) (a
“Greenfield Project”) within a Restricted Area of a Facility, unless Tenant shall first offer Landlord the opportunity to include
the Greenfield Project as part of the Leased Property under this Master Lease on terms to be negotiated by the parties (which
terms with respect to Landlord funding the development of any such Greenfield Project (if applicable) shall include the terms set
forth in Section 10.3 hereof regarding Capital Improvements). Within thirty (30) days of Landlord’s receipt of notice from Tenant
providing the opportunity to fund and include as part of the Leased Property under this Master Lease a Greenfield Project on
terms to be negotiated by the parties, Landlord shall notify Tenant as to whether it intends to participate in such Greenfield
Project and, if Landlord indicates such intent, the parties shall negotiate in good faith the terms and conditions upon which this
would be effected, including the terms of any amendment to this Master Lease and any development, funding or purchase
agreement, which Landlord might require. Should Landlord notify Tenant that it does not intend to pursue such Greenfield
Project (or should Landlord decline to notify Tenant of its affirmative response within such thirty (30) day period), or if the
parties despite good faith efforts on both sides fail to reach an agreement on the terms under which such opportunity would be
jointly pursued under this Master Lease and such new Greenfield Project would become a part of the Leased Property hereunder,
in any event, within forty-five (45) days after Landlord’s notice to Tenant of Landlord’s intent to participate in such Greenfield
Project, then Tenant shall have no further obligation to Landlord with respect to, and may pursue such Greenfield Project on such
terms as Tenant or its applicable Affiliates may elect. Notwithstanding anything to the contrary in this Section 7.4(a), Tenant and
its Affiliates shall not be restricted under this Section 7.4(a) from (i) expanding any Facility under this Master Lease (subject to
Tenant’s compliance with the terms of the Development Agreement and Section 10.3 and the other provisions of Article X
herein) and (ii) subject to Tenant (or its Affiliate) complying with the terms of the Sister Master Lease to the extent applicable,
acquiring or operating any Competing Facility that is already in existence at any time in question.
(b) Landlord’s Obligations for Greenfields. Landlord agrees that during the Term, neither Landlord nor any of its
Affiliates shall, without the prior written consent of the Tenant (which consent may be withheld in Tenant’s sole discretion), build
or otherwise participate in the development of a Greenfield Project within the Restricted Area unless Landlord shall first offer
Tenant the opportunity to include the Greenfield Project as part of the Leased Property under this Master Lease on terms to be
negotiated by the parties pursuant to Section 7.4(a) above. Notwithstanding anything to the contrary in this Section 7.4(b), (i)
Landlord and its Affiliates shall not be restricted under this Section 7.4(b) from acquiring, financing or providing refinancing for
any facility that is in operation or has been in operation at any time during the twelve month period prior to the time in question,
and (ii) subject to the provisions of Section 7.4(d) hereof, Landlord and its Affiliates shall not be restricted under this Section
7.4(b) from expanding any Competing Facility existing at the time in question.
(c) Tenant’s Rights Regarding Facility Expansions. Tenant shall be permitted to construct Capital Improvements
in accordance with the terms of Article X hereof.
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(d) Landlord’s Rights Regarding Facility Expansions. Landlord shall be permitted to finance expansions of any
Competing Facility within the Restricted Area that is already in existence at any time in question.
(e) Reserved.
(f) Landlord’s Rights to Acquire or Finance Existing Facilities. Landlord shall not be restricted under this
Section 7.4 from acquiring or providing any kind of financing or refinancing to any Competing Facility within the Restricted
Area that is already existing at any time in question.
(g) No Restrictions Outside of Restricted Area. Each of Landlord and Tenant shall not be restricted from
participating in opportunities, including, without limitation, developing, building, purchasing or operating Gaming Facilities,
outside the Restricted Area at any time.
ARTICLE VIII
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.
8.2 Compliance with Legal and Insurance Requirements, etc. 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 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, enter upon the Leased Property and take such reasonable actions and incur such reasonable costs and
expenses to effect such compliance as it 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 regulatory
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agency, commission, board or other governmental body notifies Tenant that it is in jeopardy of losing a Gaming License material
to 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 the regulatory issue, after which period (but in all events prior to an actual revocation of such Gaming
License) Tenant shall be required to sell the Gaming License and Tenant’s Property related to such Facility to a successor
operator of such Facility determined by Landlord choosing one and Tenant choosing three (for a total of four) potential operators
and Landlord indicating the reasonable, market terms under which it would agree to lease such Facility to such potential
operators, which in Landlord’s reasonable discretion may contain reasonable variations in terms to the extent required to account
for credit quality differences among the potential operators (e.g., Landlord may require different letter of credit terms and
amounts, but may not set different rent terms). Tenant will then be entitled to auction off Tenant’s Property relating to such
Facility and Landlord will thereafter be entitled to lease the Facility to the potential successor that is the successful bidder. In the
event of a new lease from Landlord to the successor, the Leased Property relating to such Facility shall be severed from the
Leased Property hereunder and thereafter Rent shall be reduced based on the formula set forth in Section 14.6 hereof. Landlord
shall comply with any Gaming Regulations or other regulatory requirements required of it as owner of the Facilities taking into
account its Primary Intended Use (except to the extent Tenant fulfills or is required to fulfill any such requirements hereunder). In
the event that a regulatory agency, commission, board or other governmental body 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 shall be entitled to be one of the bidders) who would agree to lease such Facility to
Tenant on terms substantially the same as the terms hereof (including rent calculated in the manner provided pursuant to Section
14.6 hereof, an identical amount of which, after the effective time of such sale, shall be credited against Rent hereunder);
provided that if Tenant is the bidder it shall not be required to agree to lease the Facility, but if it is the winning bidder shall be
entitled to a credit against the Rent hereunder calculated in the manner provided pursuant to Section 14.6. In the event during the
period in which Landlord conducts such auction such 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 for
its Primary Intended Use shall be affected 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, which shall not be unreasonably withheld
unless the action for which consent is sought could adversely affect the Primary Intended Use of a Facility (in which event
Landlord may withhold its consent
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in its sole and absolute discretion), Tenant shall not (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 or use or permit the use of the Leased Property; (iii) impose or permit or suffer the imposition of any restrictive
covenants, easements or encumbrances (other than Permitted Leasehold Mortgages) upon the Leased Property in any manner that
adversely affects in any material respect the value or utility of 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 in such manner as might make
possible a claim of adverse usage or possession or of any implied dedication or easement (provided that the proscription in this
clause (v) is not intended to and shall not restrict Tenant in any way from complying with any obligation it may have under
applicable Legal Requirements, including, without limitation, Gaming Regulations, to afford to the public access to the Leased
Property).
8.4 Compliance with Ground Lease.
(a) This Master Lease, to the extent affecting and solely with respect to the Ground Leased Property, is and shall
be subject and subordinate to all of the terms and conditions of the Ground Lease. Tenant hereby acknowledges that Tenant has
reviewed and agreed to all of the terms and conditions of the Ground Lease. Tenant hereby agrees that Tenant shall not do, or fail
to do, anything that would cause any violation of the Ground Lease. Without limiting the foregoing, (i) to the extent Landlord is
required to obtain the written consent of the lessor under the Ground Lease (the “Ground Lessor”) to alterations of or the
subleasing of all or any portion of the Ground Leased Property pursuant to the Ground Lease, Tenant shall likewise obtain
Ground Lessor’s written consent to alterations of or the subleasing of all or any portion of the Ground Leased Property, and (ii)
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 Lease.
(b) In the event of cancellation or termination of the 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 Ground Lessor’s option, Tenant shall make full and complete attornment to Ground Lessor
with respect to the obligations of Landlord to Ground Lessor in connection with the Ground Leased Property for the balance of
the term of the Lease (notwithstanding that this Master Lease shall have expired with respect to the Ground Leased Property as a
result of the cancellation or termination of the Ground Lease). Tenant’s attornment shall be evidenced by a written agreement
which shall provide that the Tenant is in direct privity of contract with Ground Lessor (i.e., that all obligations previously owed to
Landlord under this Master Lease with respect to the Ground Lease or the Ground Leased Property shall be obligations owed to
Ground Lessor for the balance of the term of this Master Lease, notwithstanding that this Master Lease shall have expired with
respect to the Ground Leased Property as a result of the cancellation or
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termination of the Ground Lease) and which shall otherwise be in form and substance reasonably satisfactory to Ground Lessor.
Tenant shall execute and deliver such written attornment within thirty (30) days after request by 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 Ground Lessor and Tenant.
(c) Nothing contained in this Master Lease amends, or shall be construed to amend, any provision of the Ground
Lease.
ARTICLE IX
9.1 Maintenance and Repair. (a) Tenant, at its expense and without the prior consent of Landlord, shall
maintain the Leased Property and Tenant’s Property, and every portion thereof, and all private roadways, sidewalks and curbs
appurtenant to the Leased Property, and which are under Tenant’s control in good order and repair whether or not the need for
such repairs occurs as a result of Tenant’s use, any prior use, the elements or the age of the Leased Property and Tenant’s
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. All repairs shall be at least equivalent in quality to the original work. Tenant will not take or omit to
take any action the taking or omission of which would reasonably be expected to materially impair the value or the usefulness of
the Leased Property or any part thereof or any Capital Improvement thereto for its Primary Intended Use.
(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) 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
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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.
(e) Without limiting Tenant’s obligations to maintain the Leased Property and Tenant’s Property under this
Master Lease, within thirty (30) days after the end of each calendar year, 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 its actual Net
Revenue 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 number of expenditures and fails within sixty (60) days
after receipt of a written demand 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 an
Event of 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) (collectively, “Claims”) based on or arising by
reason of any such encroachment, violation or impairment; provided, however, Landlord shall have no obligation to protect,
indemnify, save harmless or defend Tenant from or against any Claims with respect to any encroachment, violation or impairment
that resulted from the acts or omissions of Tenant or its employees, agents and contractors which occurred prior to or after the
Effective Date (any such encroachment, violation or impairment being a “Tenant Encroachment”). In the event of an adverse
final determination with respect to any such encroachment, violation or impairment,
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either (a) each of Tenant and Landlord shall be entitled to obtain valid and effective waivers or settlements of all Claims 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 (other than with respect to any Tenant Encroachment, which
shall be at Tenant’s sole cost and expense) 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 (other than any Tenant Encroachment), 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 Claims based on or arising
by reason of any such encroachment, violation or impairment (other than a Tenant Encroachment) as set forth in this Section 9.2;
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
10.1 Construction of Capital Improvements to the Leased Property. Tenant shall, with respect to any
Facility, have the right to make a Capital Improvement, including, without limitation, any Capital Improvement required by
Section 8.2 or 9.1(a), without the consent of Landlord if the Capital Improvement (i) is of equal or better quality than the existing
Leased Improvements it is improving, altering or modifying, (ii) does not consist of adding new structures or enlarging existing
structures, and (iii) does not have an adverse effect on the structure of any existing Leased Improvements. Tenant shall provide
Landlord copies of the plans and specifications in respect of all Capital Improvements, which plans and specifications shall be
prepared in a high-grade professional manner and shall adequately demonstrate compliance with clauses (i)-(iii) of the preceding
sentence with respect to projects that do not require Landlord’s written consent and shall be in such form as Landlord may
reasonably require for any other projects. All other Capital Improvements shall be subject to Landlord’s review and approval,
which approval shall not be unreasonably withheld. For any Capital Improvement
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which does not require the approval of Landlord, Tenant shall, prior to commencing construction of such Capital Improvement,
provide to Landlord a written description of such Capital Improvement and on an ongoing basis supply Landlord with related
documentation and information as Landlord may reasonably request (including plans and specifications of any such Capital
Improvements). If Tenant desires to make a Capital Improvement for which Landlord’s approval is required, 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. It shall be reasonable for Landlord to condition its
approval of any Capital Improvement upon any or all of the following terms and conditions:
(a) Such construction shall be effected pursuant to detailed plans and specifications approved by Landlord,
which approval shall not be unreasonably withheld;
(b) Such construction shall be conducted under the supervision of a licensed architect or engineer selected by
Tenant and approved by Landlord, which approval shall not be unreasonably withheld;
(c) Landlord’s receipt, from the general contractor and, if reasonably requested by Landlord, a major
subcontractor(s) of a performance and payment bond for the full value of such construction, which such bond shall name
Landlord as an additional obligee and otherwise be in form and substance and issued by a Person reasonably satisfactory to
Landlord;
(d) In the case of a Tenant Capital Improvement, such construction shall not be undertaken unless Tenant
demonstrates to the reasonable satisfaction of Landlord the financial ability to complete the construction without adversely
affecting its cash flow position or financial viability; and
(e) No Capital Improvement will result in the Leased Property becoming a “limited use” property for purposes
of United States federal income taxes.
10.2 Construction Requirements for All Capital Improvements. Whether or not Landlord’s review and
approval is required, for all Capital Improvements:
(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 which require the approval of Landlord
as hereinabove provided shall have been so approved by Landlord;
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(b) Such construction shall not, and, if such Capital Improvement is of a type that would reasonably be expected
to require the services of an architect or engineer in connection with customary construction practices for projects of a similar
size, scope and complexity, Tenant’s licensed architect or engineer shall certify to Landlord that such architect or engineer
believes that 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) If such Capital Improvement is of a type that would reasonably be expected to require the services of an
architect or engineer in connection with customary construction practices for projects of a similar size, scope and complexity,
Tenant’s licensed architect or engineer shall certify to Landlord that such architect or engineer believes that the detailed plans and
specifications conform to, and comply with, in all material respects all applicable building, subdivision and zoning codes, laws,
ordinances and regulations imposed by all governmental authorities having jurisdiction over the Leased Property of the
applicable Facility;
(d) 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, with Landlord’s prior consent and at no additional expense to Landlord, (i) to the extent additional
parking is not already a part of a Capital Improvement, Tenant may construct additional parking on the Land; or (ii) 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;
(e) All work done in connection with such construction shall be done promptly 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 minority or women owned business requirements; and
(f) Promptly following the completion of such construction, Tenant shall deliver to Landlord “as built” drawings
of such addition, certified as accurate by the licensed architect or engineer selected by Tenant to supervise such work unless such
Capital Improvements have not resulted in any changes to the previously delivered “as built” drawings, and copies of any new or
revised certificates of occupancy.
10.3 Landlord’s Right of First Offer to Fund. Tenant shall request that Landlord fund or finance the
construction and acquisition of any Capital Improvement that includes Long-Lived Assets (along with reasonably related fees and
expenses, such as title fees, costs of permits, legal fees and other similar transaction related costs) if the cost of such Capital
Improvements constituting Long-Lived Assets is expected to be in excess of Two million Dollars ($2,000,000) (subject to the
CPI Increase), and Tenant shall provide to Landlord any information
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about such Capital Improvements which Landlord may reasonably request (including any specifics regarding the terms upon
which Tenant will be seeking financing for such Capital Improvements). Landlord may, but shall be under no obligation to,
provide the funds necessary to meet the request. Within thirty (30) days of receipt of a request to fund a proposed Capital
Improvement pursuant to this Section 10.3, Landlord shall notify Tenant as to whether it will fund all or a portion of such
proposed Capital Improvement and, if so, the terms and conditions upon which it would do so. If Landlord agrees to fund such
proposed Capital Improvement, Tenant shall have ten (10) Business Days to accept or reject Landlord’s funding proposal. If
Landlord declines to fund a proposed Capital Improvement (or declines to provide Tenant written notice within such thirty (30)-
day period of the terms of its proposal to fund such Capital Improvements), Tenant shall be permitted to secure outside financing
or utilize then existing available financing for such Capital Improvement for a six-month period, after which six-month period (if
Tenant has not secured outside financing or determined to utilize then existing available financing) Tenant shall again be required
to first seek funding from Landlord. If Landlord agrees to fund all or a portion of a proposed Capital Improvement and Tenant
rejects the terms thereof, Tenant shall be permitted to either use then existing available financing or seek outside financing for
such Capital Improvement for a six-month period, in each case on terms that are economically more advantageous to Tenant than
offered under Landlord’s funding proposal, and if Tenant elects to utilize economically more advantageous financing it shall
provide Landlord evidence of the terms of such financing; provided that, in determining if financing is economically more
advantageous (i) consideration may be given to, among other items, (x) pricing, amortization, and length of term of such
financing; (y) the cost, availability and terms of any financing sufficient to fund such Capital Improvement and other
expenditures (exclusive of the related fees and expense described above) material in relation to the cost of such Capital
Improvement (if any) which are intended to be funded in connection with the construction and acquisition of such Capital
Improvement and which are related to the use and operation of such Capital Improvement and (z), and other customary
considerations and, (ii) in the event that Tenant uses Cash to fund such Capital Improvement Costs, such use of Cash shall be
deemed to have financing terms equivalent to those of the then outstanding Indebtedness of the Tenant having the highest rate of
interest which is then permitted to be repaid, factoring in any related call or prepayment premium (to the extent any such
Indebtedness of the Tenant is then outstanding); and provided, further, that in no event shall Tenant be obligated to obtain
financing from Landlord to the extent such financing from Landlord would violate or cause a default or breach under any
Material Indebtedness of Tenant’s Parent or Tenant. If Tenant constructs a Capital Improvement with its then existing available
financing or outside financing obtained in accordance with this Section 10.3, (i) except as may otherwise be expressly provided
in this Master Lease to the contrary, (A) during the Term, such Capital Improvements shall be deemed part of the Leased Property
and the Facilities solely for the purpose of calculating Net Revenues hereunder and shall for all other purposes be Tenant’s
Property and (B) following expiration or termination of the Term, shall be either, at the option of Landlord, purchased by
Landlord for fair market value or, if not purchased by Landlord, Tenant shall be entitled to either remove such Tenant Capital
Improvements, provided that the Leased Property is restored in a manner reasonably satisfactory to Landlord, or receive fair
value for such Tenant Capital Improvements in accordance with Article XXXVI. If Landlord agrees to fund a proposed Capital
Improvement and Tenant accepts the terms thereof, such Capital Improvements shall be deemed
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part of the Leased Property and the Facilities for all purposes and Tenant shall provide Landlord with the following prior to any
advance of funds:
(a) any information, certificates, licenses, permits or documents reasonably requested by Landlord which are
necessary and obtainable to confirm that Tenant will be able to use the Capital Improvement upon completion thereof in
accordance with the Primary Intended Use, including all required federal, state or local government licenses and approvals;
(b) an Officer’s Certificate and, if requested, a certificate from Tenant’s architect providing appropriate backup
information, setting forth in reasonable detail the projected or actual costs related to such Capital Improvements;
(c) an amendment to this Master Lease (and any development or funding agreement agreed to in accordance
with this Section 10.3), in a form reasonably agreed to by Landlord and Tenant, which may include, among other things, an
increase in the Rent in amounts as agreed upon by the parties hereto pursuant to the agreed funding proposal terms described
above and other provisions as may be necessary or appropriate;
(d) a deed conveying title to Landlord to any land acquired for the purpose of constructing the Capital
Improvement free and clear of any liens or encumbrances except those approved by Landlord, and accompanied by an ALTA
survey thereof satisfactory to Landlord;
(e) for each advance, endorsements to any outstanding policy of title insurance covering the Leased Property or
commitments therefor reasonably satisfactory in form and substance to Landlord (i) updating the same without any additional
exception except those that do not materially affect the value of such land and do not interfere with the use of the Leased Property
or as may be approved by Landlord, which approval shall not be unreasonably withheld, and (ii) increasing the coverage thereof
by an amount equal to the cost of the Capital Improvement, except to the extent covered by the owner’s policy of title insurance
referred to in subparagraph (f) below;
(f) if appropriate, an owner’s policy of title insurance insuring the fair market value of fee simple title to any
land and improvements conveyed to Landlord free and clear of all liens and encumbrances except those that do not materially
affect the value of such land and do not interfere with the use of the Leased Property or are approved by Landlord, which
approval shall not be unreasonably withheld, provided that if the requirement in this paragraph (f) is not satisfied (or waived by
Landlord), Tenant shall be entitled to seek third party financing or use available financing in lieu of seeking such advance from
Landlord;
(g) if requested by Landlord, an appraisal by a member of the Appraisal Institute of the Leased Property
indicating that the fair market value of the Leased Property upon completion of the Capital Improvement will exceed the fair
market value of the Leased Property immediately prior thereto by an amount not less than ninety-five percent (95%) of the cost
of the Capital Improvement, provided that if the requirement in this paragraph (g) is not satisfied (or waived by Landlord), Tenant
shall be entitled to seek third party financing or use available financing in lieu of seeking such advance from Landlord; and
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(h) such other billing statements, invoices, certificates, endorsements, opinions, site assessments, surveys,
resolutions, ratifications, lien releases and waivers and other instruments and information reasonably required by Landlord.
10.4 Tenant Projects – Columbus Facility. Tenant intends to construct an additional hotel upon the Leased
Property in respect of the Columbus Facility, pursuant to and as more particularly set forth in the Development Agreement (the
“Columbus Project”). Any buildings, structures, fixtures or other improvements constructed on the Columbus Facility pursuant
to the Development Agreement (collectively, the “New Columbus Improvements”) shall be and shall remain Tenant’s Property
hereunder unless and until Tenant (which for the avoidance of doubt shall have the sole option to deliver, but shall not be required
to deliver or otherwise request any funding from Landlord) has delivered a Draw Notice (as defined in the Development
Agreement) with respect to the Columbus Project (as defined in the Development Agreement), in which case (i) ownership of the
New Columbus Improvements shall in accordance with the terms of the Development Agreement, without the need for any
further documentation, vest with and be transferred to, Landlord and the New Columbus Improvements shall no longer be treated
as Tenant Improvements and shall be added to the Leased Property demised under this Master Lease effective as of the applicable
Initial Funding Date, and (ii) Tenant shall pay Development Period Rent (as defined in the Development Agreement) with respect
to the Columbus Project as contemplated in the Development Agreement. For the avoidance of doubt, Tenant’s obligation to pay
Development Period Rent in connection with the Columbus Project shall cease at the time Tenant’s obligation to pay Additional
Rent has commenced with the Columbus Project such that there is no duplication in payment. Notwithstanding anything
contained herein to the contrary, in the event that Tenant does not deliver a Draw Notice to Landlord with respect to the
Columbus Project and Tenant elects to deliver a Columbus Final Funding Notice, the New Columbus Improvements shall
automatically, vest with and be transferred to, Landlord and the New Columbus Improvements shall no longer be treated as
Tenant Improvements and shall be added to the Leased Property demised under this Master Lease effective simultaneously with
Landlord’s delivery of the Columbus Final Funding (as defined in the Development Agreement) to Tenant in accordance with the
Development Agreement. Upon the Columbus Opening Date, the Rent payable under this Master Lease shall be increased by an
amount equal to the Additional Columbus Rent if and to the extent required under Section 5.3(b) of the Development Agreement.
Landlord and Tenant hereby agree to enter into an amendment to this Master Lease to confirm the amount, if any, of Additional
Columbus Rent, calculated in accordance with the Development Agreement and added to the Rent hereunder in accordance with
the Development Agreement.
10.5 Tenant Projects - M Resort. Tenant intends to construct an additional hotel upon the Leased Property in
respect of the M Resort, pursuant to and as more particularly set forth in the Development Agreement (the “M Resort Project”).
Any buildings, structures, fixtures or other improvements constructed on the M Resort pursuant to the Development Agreement
(collectively, the “New M Resort Improvements”) shall be and shall remain Tenant’s Property hereunder unless and until Tenant
(which for the avoidance of doubt shall have the sole option to deliver, but shall not be required to deliver or otherwise request
any funding from Landlord) has delivered a Draw Notice (as defined in the Development Agreement)
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with respect to the M Resort Project (as defined in the Development Agreement), in which case (i) ownership of the New M
Resort Improvements shall in accordance with the terms of the Development Agreement, without the need for any further
documentation, vest with and be transferred to, Landlord and the New M Resort Improvements shall no longer be treated as
Tenant Improvements and shall be added to the Leased Property demised under this Master Lease effective as of the applicable
Initial Funding Date, and (ii) Tenant shall pay Development Period Rent (as defined in the Development Agreement) with respect
to the M Resort Project as contemplated in the Development Agreement. For the avoidance of doubt, Tenant’s obligation to pay
Development Period Rent in connection with the M Resort Project shall cease at the time Tenant’s obligation to pay Additional
Rent has commenced with the M Resort Project such that there is no duplication in payment. Notwithstanding anything contained
herein to the contrary, in the event that Tenant does not deliver a Draw Notice to Landlord with respect to the M Resort Project
and Tenant elects to deliver a M Resort Final Funding Notice, the New M Resort Improvements shall automatically, vest with and
be transferred to, Landlord and the New M Resort Improvements shall no longer be treated as Tenant Improvements and shall be
added to the Leased Property demised under this Master Lease effective simultaneously with Landlord’s delivery of the M Resort
Final Funding (as defined in the Development Agreement) to Tenant in accordance with the Development Agreement. Upon the
M Resort Opening Date, the Rent payable under this Master Lease shall be increased by an amount equal to the Additional M
Resort Rent if and to the extent required under Section 5.4(b) of the Development Agreement. Landlord and Tenant hereby agree
to enter into an amendment to this Master Lease to confirm the amount, if any, of Additional M Resort Rent, calculated in
accordance with the Development Agreement and added to the Rent hereunder in accordance with the Development Agreement.
ARTICLE XI
11.1 Liens. Subject to the provisions of Article XII relating to permitted contests, Tenant will not directly or
indirectly create or allow to remain and will promptly discharge at its expense any lien, encumbrance, attachment, title retention
agreement or claim upon the Leased Property (including, Landlord’s fee simple interest therein) 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) or any attachment, levy, claim or encumbrance in respect of the Rent, excluding, however, (i)
this Master Lease; (ii) the matters that existed as of the Commencement Date with respect to such Facility and disclosed on
Schedule 1A; (iii) restrictions, liens and other encumbrances which are consented to in writing by Landlord (such consent not to
be unreasonably withheld); (iv) liens for Impositions which Tenant is not required to pay hereunder; (v) subleases permitted by
Article XXII; (vi) liens for Impositions not yet delinquent or being contested in accordance with Article XII, provided that Tenant
has provided appropriate reserves as required under GAAP and any foreclosure or similar remedies with respect to such
Impositions have not been instituted and no notice as to the institution or commencement thereof has been issued except to the
extent such institution or commencement is stayed no later than the earlier of (x) ten (10) Business Days after such notice is
issued or (y) five (5) Business Days prior to the institution or commencement thereof; (vii) liens of mechanics, laborers,
materialmen, suppliers or vendors for sums either disputed or not yet due, provided that (1) the payment of such sums shall not be
postponed under
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any related contract for more than sixty (60) days after the completion of the action giving rise to such lien unless being contested
in accordance with Article XII and such reserve or other appropriate provisions as shall be required by law or GAAP shall have
been made therefor and no foreclosure or similar remedies with respect to such liens has been instituted and no notice as to the
institution or commencement thereof have been issued except to the extent such institution or commencement is stayed no later
than the earlier of (x) ten (10) Business Days after such notice is issued or (y) five (5) Business Days prior to the institution or
commencement thereof; or (2) any such liens are in the process of being contested as permitted by Article XII; (viii) any liens
created by Landlord; (ix) 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, provided that the payment of any sums due under such equipment leases or
equipment financing shall either (1) be paid as and when due in accordance with the terms thereof, or (2) be in the process of
being contested as permitted by Article XII and provided that a lien holder’s removal of any such Tenant’s Property from the
Leased Property shall be made in accordance with the requirements set forth in this Section 11.1; (x) liens granted as security for
the obligations of Tenant and its Affiliates under a Debt Agreement; provided, however, in no event shall the foregoing be
deemed or construed to permit Tenant to encumber (a) 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) 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 or (b) Landlord’s fee
simple interest in the Leased Property; and (xi) 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. 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 (except to the extent
contemplated in the final paragraph of this Section 11.1) 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 Change in 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 equipment 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 granted a Permitted Leasehold Mortgage 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) slot machines and other
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gaming equipment even if the removal thereof from the Leased Property could result in de minimis damage; provided any such
damage is repaired by the lien holder or Tenant in accordance with the terms of this Master Lease.
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 shall be treated as an operating lease for all purposes and not as a synthetic lease, financing lease or loan
and that Landlord shall be entitled to all the benefits of ownership of the Leased Property, including depreciation for all federal,
state and local tax purposes.
If, notwithstanding (a) the form and substance of this Master Lease and (b) the intent of the parties, and the
language contained herein providing that this Master Lease shall at all times be construed, interpreted and applied to create an
indivisible lease of all of the Leased Property, any court of competent jurisdiction finds that this Master Lease is a financing
arrangement, this Master Lease shall be considered a secured financing agreement and Landlord’s title to the Leased Property
shall constitute a perfected first priority lien in Landlord’s favor on the Leased Property to secure the payment and performance
of all the obligations of Tenant hereunder (and to that end, Tenant hereby grants, assigns and transfers to the Landlord a security
interest in all right, title or interest in or to any and all of the Leased Property, as security for the prompt and complete payment
and performance when due of Tenant’s obligations hereunder). Tenant authorizes Landlord, at the expense of Tenant, to make any
filings or take other actions as Landlord reasonably determines are necessary or advisable in order to effect fully this Master
Lease or to more fully perfect or renew the rights of the Landlord, and to subordinate to the Landlord the lien of any Permitted
Leasehold Mortgagee, with respect to the Leased Property (it being understood that nothing herein shall affect the rights of a
Permitted Leasehold Mortgagee under Article XVII hereof). At any time and from time to time upon the request of the Landlord,
and at the expense of the Tenant, Tenant shall promptly execute, acknowledge and deliver such further documents and do such
other acts as the Landlord may reasonably request in order to effect fully this Master Lease or to more fully perfect or renew the
rights of the Landlord with respect to the Leased Property. Upon the exercise by the Landlord 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 will execute and deliver, or will cause the execution and delivery of, all applications,
certifications, instruments and other documents and papers that Landlord may be required to obtain from Tenant for such consent,
approval, recording, qualification or authorization.
ARTICLE XII
12.1 Permitted Contests. Tenant, upon prior written 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),
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Imposition, Legal Requirement, Insurance Requirement, lien, attachment, levy, encumbrance, charge or claim; provided,
however, that (i) in the case of an unpaid Imposition, lien, attachment, levy, encumbrance, charge or claim, the commencement
and continuation of such proceedings shall suspend the collection thereof from Landlord and from the Leased Property or any
Capital Improvement thereto; (ii) neither the Leased Property or any Capital Improvement thereto, the Rent therefrom nor any
part or interest in either thereof would be in any danger of being sold, forfeited, attached or lost pending the outcome of such
proceedings; (iii) in the case of a Legal Requirement, neither Landlord nor Tenant would be in any danger of civil or criminal
liability for failure to comply therewith pending the outcome of such proceedings; (iv) if any such contest shall involve a sum of
money or potential loss in excess of Two Hundred Thousand Dollars ($200,000), upon request of the Landlord, Tenant shall
deliver to Landlord an opinion of counsel reasonably acceptable to Landlord to the effect set forth in clauses (i), (ii) and (iii)
above, to the extent applicable; (v) in the case of a Legal Requirement, Imposition, lien, encumbrance or charge, 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; (vi) in the case of an Insurance Requirement, the coverage required by Article XIII shall be maintained;
(vii) Tenant shall keep Landlord reasonably informed as to the status of the proceedings; and (viii) 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 written notice to Landlord of Tenant’s preference that Landlord not join in such proceeding.
ARTICLE XIII
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 third party liability type policies must
name Landlord as an “additional insured.” All property policies shall name Landlord as “loss payee” for its interests in each
Facility. 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
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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 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 Five Million Dollars ($5,000,000) in which event no consent
shall be required. Evidence of insurance shall be deposited with Landlord and, if requested, with any 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 and windstorm in an amount not less than the insurable value on a Maximum Foreseeable Loss (as defined below in
Section 13.2) basis and including a building ordinance coverage endorsement, provided that in the event the premium cost of any
or all of earthquake, flood, windstorm (including named windstorm) or terrorism 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 preceding three years for the
insurance policy contemplated by this Section 13.1(a), then Tenant shall be entitled and required to purchase the maximum
insurance coverage it deems most efficient and prudent to purchase and Tenant shall not be required to spend additional funds to
purchase additional coverages insuring against such risks; and provided, further, that some property coverages might be sub-
limited in an amount less than the Maximum Foreseeable Loss as long as the sub-limits are commercially reasonable and prudent
as deemed by Tenant;
(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 probable maximum loss of a 500 year event and
such other hazards and in such amounts as may be customary for comparable properties in the area;
(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), provided that Tenant may self-insure
specific Facilities for the insurance contemplated under this Section 13.1(d), provided that (i) such Facilities that Tenant chooses
to self-insure are
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not expected to generate more than ten percent (10%) of Net Revenues anticipated to be generated from all the Facilities and (ii)
Tenant deposits in any impound account created under Section 4.3 hereof an amount equal to the product of (1) the sum of (A)
the insurance premiums paid by Tenant for such period under this Section 13.1(d) to insurance companies and (B) the amount
deposited by Tenant in an impound account pursuant to this provision, and (2) the percentage of Net Revenues that are
anticipated to be generated by the Facilities that are being self-insured by Tenant under this provision;
(e) Claims for personal injury or property damage under a policy of comprehensive general public liability
insurance with amounts not less than One Hundred Million Dollars ($100,000,000) each occurrence and One Hundred Million
Dollars ($100,000,000) 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) During such time as Tenant is constructing any improvements, Tenant, at its sole cost and expense, shall
carry, or cause to be carried (i) workers’ compensation insurance and employers’ liability insurance covering all persons
employed in connection with the improvements in statutory limits, (ii) a completed operations endorsement to the commercial
general liability insurance policy referred to above, (iii) 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 (iv) 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 contractors or subcontractors.
13.2 Maximum Foreseeable Loss. The term “Maximum Foreseeable Loss” shall mean the largest monetary
loss within one area that may be expected to result from a single fire with protection impaired, the control of the fire mainly
dependent on physical barriers or separations and a delayed manual firefighting by public and/or private fire brigades. If
Landlord reasonably believes that the Maximum Foreseeable Loss has increased at any time during the Term, it shall have the
right (unless Tenant and Landlord agree otherwise) to have such Maximum Foreseeable Loss redetermined by an impartial
national insurance company reasonably acceptable to both parties (the “Impartial Appraiser”), or, if the parties cannot agree on
an Impartial Appraiser, then by an Expert appointed in accordance with Section 34.1 hereof. The determination of the Impartial
Appraiser (or the Expert, as the case may be) shall be final and binding on the parties hereto, and Tenant shall forthwith adjust the
amount of the insurance carried pursuant to this Article XIII to the amount so determined by the Impartial Appraiser (or the
Expert, as the case may be), subject to the approval of the Facility Mortgagee, as applicable. Each party shall pay one-half (1/2)
of the fee, if any, of the Impartial Appraiser. If Landlord pays the Impartial Appraiser, fifty percent (50%) of such costs shall be
Additional Charges hereunder and if Tenant pays such Impartial Appraiser, fifty percent (50%) of such costs shall be a credit
against the next Rent payment hereunder. If Tenant has undertaken any structural alterations or additions to the Leased Property
having a cost or value in excess of Twenty Five Million Dollars ($25,000,000), Landlord may at Tenant’s expense have the
Maximum Foreseeable Loss redetermined at any time after such improvements are made, regardless of when the Maximum
Foreseeable Loss was last determined.
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13.3 Additional Insurance. In addition to the insurance described above, Tenant shall maintain such additional
insurance upon notice from Landlord as may be reasonably required from time to time by any Facility Mortgagee and shall
further at all times maintain adequate workers’ compensation coverage and any other coverage required by Legal Requirements
for all Persons employed by Tenant on the Leased Property in accordance with Legal Requirements.
13.4 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 against the other party. Each party, respectively, shall pay any additional costs or charges for
obtaining such waiver.
13.5 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
policyholder rating of “A-” and a financial rating of “VII” in the most recent version of Best’s Key Rating Guide, or a minimum
rating of “BBB” 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) written 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 insurance policies when issued by the insurers providing such coverage.
13.6 Increase in Limits. If, from time to time after the Commencement Date, Landlord determines in the
exercise of its reasonable business judgment that the limits of the
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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
13.6.
13.7 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; provided that the requirements of this Article XIII (including satisfaction of the
Facility Mortgagee’s requirements and the approval of the Facility Mortgagee) are otherwise satisfied, and provided further that
Tenant maintains specific allocations acceptable to Landlord.
13.8 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 insureds 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.
ARTICLE XIV
14.1 Property Insurance Proceeds. All proceeds (except business interruption not allocated to rent expenses)
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; and provided, further, that if the total amount of
proceeds payable net of the applicable deductibles is One Hundred Fifty Thousand Dollars ($150,000) or less, and, if no Event of
Default has occurred and is continuing, the proceeds shall be paid to Tenant and, subject to the limitations set forth in this Article
XIV used for the repair of any
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damage to the Leased Property, it being understood and agreed that Tenant shall have no obligation to rebuild any Tenant Capital
Improvement, provided that the Leased Property is rebuilt in a manner 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 same
condition as existed immediately before the damage or destruction and with materials and workmanship of like kind and quality
and to Landlord’s reasonable satisfaction shall be provided 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) 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, it being understood and agreed that
Tenant shall not be required to repair any Tenant Capital Improvement, provided that the Leased Property is rebuilt in a manner
reasonably satisfactory to Landlord), to substantially the same condition as existed immediately before such damage and (ii) such
damage shall not terminate this Master Lease.
(b) If Tenant restores the affected Leased Property and the 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.
(c) If Tenant has not restored the affected Leased Property and gaming operations have not recommenced by the
date that is the third anniversary of the date of any casualty, all remaining insurance proceeds shall be paid to and retained by
Landlord free and clear of any claim by or through Tenant.
(d) In the event neither Landlord nor Tenant is required or elects to repair and restore the Leased Property, all
insurance proceeds, other than proceeds reasonably attributed to any Tenant Capital Improvements (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.
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.
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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 shall be applied, held and/or disbursed in accordance with the terms of the Facility Mortgage. In the
event that the Facility Mortgagee elects, or is required under the related financing document, to apply the insurance proceeds to
the indebtedness secured by the Facility Mortgage, then Tenant shall not be obligated to repair or restore the Facility and
Landlord shall either (i) refinance with a replacement Facility Mortgage (or otherwise fund) the amount of insurance proceeds
applied to Facility Mortgage indebtedness within twelve (12) months of such application (in which case Tenant shall be obligated
to restore the Facility upon receipt of such proceeds), or (ii) sell to Tenant the Leased Property consisting of such Facility (and
Tenant shall be entitled to retain any remaining insurance proceeds) in exchange for a payment equal to the greater of (1) the
difference between (a) the value of such Facility immediately prior to such casualty, based on the average fair market value of
similar real estate in the areas surrounding such Facility, and (b) the amount of insurance proceeds retained by the Facility
Mortgagee, and (2) the value of such Facility after such casualty, based on the average fair market value of similar real estate in
the areas surrounding such Facility.
14.6 Termination of Master Lease; Abatement of Rent. In the event this Master Lease is terminated as to an
affected Leased Property pursuant to Section 1.4 (with respect to the Term terminating in respect of a Barge-Based Facility),
Section 8.2 (in respect of Tenant being in jeopardy of losing a Gaming License or Landlord being in jeopardy of failing to comply
with a regulatory requirement material to the continued operation of a Facility), Section 14.5 (in the event Facility Mortgagee
elects to apply insurance proceeds to pay down indebtedness secured by a Facility Mortgage following the damage to or
destruction of all or any portion of the Leased Property or such prepayment is required under the related financing document) or
Section 15.5 (as provided therein) (such termination or cessation, a “Leased Property Rent Adjustment Event”), then:
(i) the Base Rent and Additional Rent, in the aggregate, due hereunder from and after the effective date of any such
Leased Property Rent Adjustment Event shall be reduced by an amount determined by multiplying (A) a fraction,
(x) the numerator of which shall be the fair market value for the affected Leased Property immediately prior to the
effective date of the Leased Property Rent Adjustment Event and (y) the denominator of which shall be the fair
market value for all of the Leased Property then subject to the terms of this Master Lease, including the affected
Leased Property immediately prior to the effective date of such Leased Property Rent Adjustment Event (in each
case the fair market value as determined in good faith by the parties or if the parties cannot agree, by an Expert
pursuant to Section 34.1 of this Master Lease), by (B) the Base Rent and Additional Rent
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payable under this Master Lease immediately prior to the effective date of the Leased Property Rent Adjustment
Event as to the affected Leased Property; 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.
15.1 Condemnation.
ARTICLE XV
(a) Total Taking. If the Leased Property of a Facility is totally and permanently taken by Condemnation (a
“Taking”), this Master Lease shall terminate with respect to such Facility as of the day before the Date of Taking for such
Facility.
(b) Partial Taking. If a portion of the Leased Property of, and any Tenant Capital Improvements to, a Facility are
taken by Condemnation, this Master Lease shall remain in effect if the affected Facility is not thereby rendered Unsuitable for Its
Primary Intended Use, but if such Facility is thereby rendered Unsuitable for Its Primary Intended Use, this Master Lease shall
terminate with respect to such Facility as of the day before the Date of Taking for such Facility.
(c) Restoration. If there is a partial Taking of the Leased Property of, and any Tenant Capital Improvements to, 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 (excluding any Tenant Capital Improvements, it
being understood and agreed that Tenant shall not be required to repair or restore any Tenant Capital Improvements, provided that
the Leased Property is restored in a manner reasonably satisfactory to Landlord), 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 thirty (30) days after the occurrence of the Taking, then the Base Rent for such Facility shall be proportionately reduced, based
on the proportion of the Facility that was subject to the partial Taking and pursuant to the formula set forth in Section 14.6 hereof.
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 Taking.
15.2 Award Distribution. Except as set forth below (and to the extent provided in Section 15.1(c) hereof), 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 Taking for Tenant’s lost profits value and moving expenses and, the portion of the Award, if any, allocated to any Tenant
Capital Improvements (subject to Tenant’s restoring the Leased Property not subject to a Taking in a manner reasonably
satisfactory to Landlord) and Tenant’s Property shall be and remain the property of Tenant free of any claim thereto by Landlord.
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15.3 Temporary Taking. The taking of the Leased Property, or any part thereof, shall constitute a taking by
Condemnation only when the use and occupancy by the taking authority has continued for longer than 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 Condemnation Awards Paid to Facility Mortgagee. Notwithstanding anything herein to the contrary, in
the event that any Facility Mortgagee is entitled to any Condemnation Award, or any portion thereof, under the terms of any
Facility Mortgage or related financing agreement, such award shall be applied, held and/or disbursed in accordance with the
terms of the Facility Mortgage or related financing agreement. In the event that the Facility Mortgagee elects to apply the
Condemnation Award to the indebtedness secured by the Facility Mortgage in the case of a Taking as to which the restoration
provisions apply (or the related financing agreement requires such application), Landlord shall either (i) within ninety (90) days
of the notice from the Facility Mortgagee make available to Tenant for restoration of such Leased Property funds (either through
refinance or otherwise) equal to the amount applied by the Facility Mortgagee or applicable to restoration of the Leased Property,
or (ii) sell to Tenant the portion of the Leased Property consisting of the Facility that is not subject to the Taking in exchange for a
payment equal to the greater of (1) the difference between (a) the value of such Facility immediately prior to such Taking, based
on the average fair market value of similar real estate in the areas surrounding such Facility, and (b) the amount of the
Condemnation Award retained by the Facility Mortgagee, and (2) the value of the remaining portion of such Facility after such
Taking, based on the average fair market value of similar real estate in the areas surrounding such Facility.
15.5 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 Taking (or pursuant to Section 15.4 hereof as a result of a
Facility Mortgagee electing to apply a Condemnation Award to the indebtedness secured by the Facility Mortgage), 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
16.1 Events of Default. Any one or more of the following shall constitute an “Event of Default”:
(a) (i) Tenant shall fail to pay any installment of Rent within two (2) Business Days of when due and such failure
is not cured by Tenant within one (1) Business Day after notice from Landlord of Tenant’s failure to pay such installment of Rent
when due (and such notice of failure from Landlord may be given any time after such installment is more than one (1) Business
Day late);
(ii) Tenant shall fail on any two separate occasions in the same Fiscal Year to pay any installment of Rent within
two (2) Business Days;
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(iii) Tenant shall fail on any occasion to pay any installment of Rent within five (5) Business Days of when due;
or
(iv) Tenant shall fail to pay any Additional Charge within five (5) Business Days after notice from Landlord of
Tenant’s failure to make such payment of such Additional Charge when due (and such notice of failure
from Landlord may be given any time after such payment is more than one (1) Business Day late);
(b) a default shall occur under any Guaranty or other instrument (other than the Development Agreement and
any ancillary documents entered into by and between Landlord and Tenant and/or their respective Affiliates in connection with
the Development Agreement), executed by Tenant or an Affiliate of Tenant in favor of Landlord or an Affiliate of Landlord,
where the default is not cured within any applicable grace period set forth therein or, if no cure periods are provided, within 15
days after notice from Landlord (or in the case of a breach of Paragraph 8 of the Guaranty, the cure periods provided herein with
respect to such action or omission);
(c) Tenant or any Guarantor shall:
(i) admit in writing its inability to pay its debts generally as they become due;
(ii) file a petition in bankruptcy or a petition to take advantage of any insolvency act;
(iii) make an assignment for the benefit of its creditors;
(iv) consent to the appointment of a receiver of itself or of the whole or any substantial part of its property; or
(v) 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;
(d) Tenant or any Guarantor (other than an Immaterial Subsidiary 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 any Guarantor (other
than an Immaterial Subsidiary Guarantor), a receiver of Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor)
or of the whole or substantially all of the Tenant’s or any Guarantor’s (other than an Immaterial Subsidiary Guarantor’s) property,
or approving a petition filed against Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor) seeking
reorganization or arrangement of Tenant or any Guarantor (other than an Immaterial Subsidiary 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;
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(e) Tenant or any Guarantor (other than an Immaterial Subsidiary Guarantor) shall be liquidated or dissolved
(except that any Guarantor may be liquidated or dissolved into another Guarantor or the Tenant or so long as its assets are
distributed following such liquidation or dissolution to another Guarantor or Tenant);
(f) the estate or interest of Tenant in the Leased Property or any part thereof shall be levied upon or attached in
any proceeding relating to more than $1,000,000 and the same shall not be vacated, discharged or stayed pending appeal (or
bonded or otherwise similarly secured payment) within the later of ninety (90) days after commencement thereof 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;
(g) except as a result of material damage, destruction or Condemnation, Tenant voluntarily ceases operations for
its Primary Intended Use at a Facility and such event would reasonably be expected to have a material adverse effect on Tenant,
the Facilities, or on the Leased Property, in each case, taken as a whole;
(h) any of the representations or warranties made by Tenant hereunder or by any Guarantor in a Guaranty proves
to be untrue when made in any material respect that materially and adversely affects Landlord;
(i) any applicable license or other agreements material to a Facility’s operation for its Primary Intended Use are
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;
(j) except to a permitted assignee pursuant to Section 22.2 or a permitted subtenant or Subsidiary that joins as a
Guarantor to the Guaranty pursuant to Section 22.3, 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;
(k) Tenant or any Guarantor, by its acts or omissions, causes the occurrence of a default under any provision (to
the extent Tenant has knowledge of such provision and Tenant’s or such Guarantor’s obligations with respect thereto) of any
Facility Mortgage, related documents or obligations thereunder by which Tenant is bound in accordance with Section 31.1 or has
agreed under the terms of this Master Lease to be bound, which default is not cured within the applicable time period, if the effect
of such default is to cause, or to permit the holder or holders of that Facility Mortgage or Indebtedness secured by that Facility
Mortgage (or a trustee or agent on behalf of such holder or holders), to cause, that Facility Mortgage (or the Indebtedness secured
thereby) to become or be declared due and payable (or redeemable) prior to its stated maturity (excluding in any case any default
related to the financial performance of Tenant or any Guarantor);
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(l) (x) a breach by Tenant of Section 23.3(a) hereof for two consecutive Test Periods ending on the last day of
two consecutive fiscal quarters or (y) a breach of Section 23.3(b) hereof;
(m) any event or condition occurs that (i) results in any Material Indebtedness becoming due prior to its stated
maturity or (ii) enables or permits (with all applicable grace periods, if any, having expired) the holder or holders of any Material
Indebtedness or any trustee or agent on its or their behalf to cause any Material Indebtedness to become due, or to require the
prepayment, repurchase, redemption or defeasance thereof, prior to its scheduled maturity or exercise any other remedy (other
than any prepayment, repurchase, or redemption, arising out of or relating to a change of control or asset sale or any redemption,
repurchase, conversion or settlement with respect to any Indebtedness convertible into Equity Interests pursuant to its terms
unless such redemption, repurchase, conversion or settlement results from a default thereunder or an event that would otherwise
constitute an Event of Default, provided that failure to consummate any such required prepayment, redemption, repurchase,
conversion or settlement under any Material Indebtedness shall constitute an Event of Default), or (iii) the Tenant or any
Guarantor shall fail to pay the principal of any Material Indebtedness at the stated final maturity thereof (provided that this
paragraph (m) shall not apply to secured Indebtedness that becomes due as a result of the voluntary sale or transfer of the
property or assets securing such Indebtedness if such sale or transfer is not prohibited hereby and under the documents providing
for such Indebtedness);
(n) if Tenant shall fail to observe or perform any other term, covenant or condition of this Master Lease 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;
(o) if Tenant or any Guarantor shall fail to pay, bond, escrow or otherwise similarly secure payment of one or
more final judgments aggregating in excess of the product of (i) $100 million and (ii) the CPI Increase (and only to the extent not
covered by insurance), which judgments are not discharged or effectively waived or stayed for a period of forty-five (45)
consecutive days;
(p) an assignment of Tenant’s interest in this Master Lease (including pursuant to a Change in Control) shall
have occurred without the consent of Landlord to the extent such consent is required under Article XXII or Tenant is otherwise in
default of the provisions set forth in Section 22.1 below;
(q) an “Event of Default” shall have occurred under the Sister Master Lease; and
(r) the occurrence of a ML Developer Default.
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No Event of Default (other than a failure to make payment of money) shall be deemed to exist under this 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.
16.2 Certain Remedies. If an Event of Default shall have occurred and be continuing, Landlord may (a)
terminate this Master Lease by giving Tenant no less than ten (10) days’ notice of such termination and the Term shall terminate
and all rights of Tenant under this Master Lease shall cease, (b) seek damages as provided in Section 16.3 hereof, and/or (c)
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. Landlord hereby acknowledges and agrees that if prior to the expiration
or termination of the Development Agreement Landlord exercises its remedies under Section 16.2(a), then Landlord shall,
concurrently with its termination of this Master Lease, terminate the Development Agreement as a result of such ML Developer
Default. 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 of the Facilities) 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 (including any such Tenant Capital Improvement thereto).
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 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 for
the occurrence of an Event of Default, either:
(A) the sum of:
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(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 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.
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 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
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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.
17.1 Permitted Leasehold Mortgagees.
ARTICLE XVII
(a) On one or more occasions without Landlord’s prior consent Tenant may mortgage or otherwise encumber
Tenant’s leasehold 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 (in form and
substance reasonably satisfactory to Landlord) 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(iii)) 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 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. In no event shall a Permitted Leasehold Mortgage encumber Landlord’s fee simple interest in the Leased
Property.
(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 written 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
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that, following receipt of such written 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, written 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 the 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, the 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 the Landlord. If requested to do so by Landlord, Tenant shall
thereafter also provide the 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 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,
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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 the 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
(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.
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(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
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
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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 the 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 the Tenant to be performed hereunder and meet the qualifications
of Discretionary Transferee or be reasonably consented to by Landlord in accordance with Section 22.2(i) 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(iii) of
this
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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 Section 22.2(iii) of this Master Lease and enter into
Permitted Leasehold Mortgages in the same manner as the original Tenant, subject to the terms hereof.
(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(iii) of this
Master Lease or the transferee is reasonably consented to by Landlord in accordance with Section 22.2(i) hereof.
(f) PLM 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 written 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
(“PLM 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 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 PLM 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 PLM 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 PLM 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
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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) PLM Lease Priorities. If more than one Permitted Leasehold Mortgagee shall request a PLM Lease pursuant
to subsection (f)(i) of this Section 17.1, Landlord shall enter into such PLM 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 PLM
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(c), (d), (e), (f) (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), (m) (as related to the
Indebtedness secured by a Permitted Leasehold Mortgage that is junior to the lien of the Permitted Leasehold Mortgagee and
such junior lien would be extinguished by the foreclosure of the Permitted Leasehold Mortgage that is held by such Permitted
Leasehold Mortgagee) or (o) (if the judgment is in favor of a Permitted Leasehold Mortgagee other than a Permitted Leasehold
Mortgagee holding a Permitted Leasehold Mortgage that is senior to the lien of such Permitted Leasehold Mortgagee) 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 PLM Lease provided for by Section 17.1(f).
(i) 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 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 the Tenant (but not such proceeds, if
any, payable jointly to the Landlord and the Tenant or to the Landlord, to the Facility Mortgagee or to a third- party escrowee)
pursuant to the provisions of this Master Lease.
(j) Arbitration; Legal Proceedings. Landlord shall give prompt notice to each Permitted Leasehold Mortgagee
(for which notice has been properly provided to Landlord
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pursuant to Section 17.1(b) hereof) of any arbitration or legal proceedings between Landlord and Tenant involving obligations
under this Master Lease.
(k) 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.
(l) 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.
(m) 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, and no
recourse against Landlord shall be had against any other assets of Landlord whatsoever.
(n) 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 sale process described in Article XXXVI be commenced, the determination and
agreement of the Gaming Assets FMV, the Successor Tenant Rent, and the potential Successor Tenants that should be included in
the process, and negotiation with such Successor Tenants), in each case, in accordance with and subject to the terms and
provisions of Article XXXVI, including without limitation the requirement that Successor Tenant meet the qualifications of
Discretionary Transferee.
(o) 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.
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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 Landlord’s Right to Cure Debt Agreement. 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) 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. In addition, Tenant agrees that it will ensure that any such 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) includes a provision with the effect that should Tenant fail to make any payment or to perform any
act required to be made or performed under an agreement related to Material Indebtedness or under the Debt Agreement when
due or within any cure period provided for therein (if any), Landlord may, subject to applicable Gaming Regulations and the
terms hereof, cure any such default by making such payment to the applicable lenders or Representative or otherwise performing
such acts within the cure period thereunder (if any) for the account of Tenant, to the extent such default is susceptible to cure by
Landlord; provided that Landlord’s right to cure such default shall not be any greater than the rights of the obligors under such
Material Indebtedness or Debt Agreement to cure such default. Landlord and Tenant agree that 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 for the account of Tenant
and paid by Tenant to Landlord on demand.
ARTICLE XVIII
18.1 Sale of the Leased Property. Landlord shall not voluntarily sell all or portions of the Leased Property
during the Term without the prior written consent of Tenant, which consent may not be unreasonably withheld. Notwithstanding
the foregoing, Tenant’s consent shall not be required for (A) any transfer to a Facility Mortgagee contemplated under Article
XXXI hereof which may include, without limitation, a transfer by foreclosure brought by the Facility Mortgagee or a transfer by
deed in lieu of foreclosure (and the first subsequent sale by such Facility Mortgagee to the extent the Facility Mortgagee has been
diligently attempting to expedite such first subsequent sale from the time it initiated foreclosure proceedings taking into account
the interest of such Facility Mortgagee to maximize the proceeds of such sale), (B) a sale
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by Landlord of all of the Leased Property to a single buyer or group of buyers, other than to an operator, or an Affiliate of an
operator, of Gaming Facilities (provided that Landlord shall be permitted to sell all of the Leased Property to a real estate
investment trust even if such real estate investment trust is an Affiliate of an operator), (C) a merger transaction or sale by
Landlord or GLP involving all of the Facilities, other than with an operator, or an Affiliate of an operator, of Gaming Facilities
(provided that Landlord or GLP shall be permitted to merge with or sell all of the Leased Property to a real estate investment trust
even if such real estate investment trust is an Affiliate of an operator), (D) a sale/leaseback transaction by Landlord with respect
to any or all of the Leased Properties for financing purposes, (E) any sale of all or a portion of the Leased Property or the
Facilities that does not change the identity of the Landlord hereunder, including without limitation a participating interest in
Landlord’s interest under this Master Lease or a sale of Landlord’s reversionary interest in the Leased Property, or (F) a sale or
transfer to an Affiliate of GLP or a joint venture entity in which GLP or its Affiliate is the managing member or partner. Any sale
by Landlord of all or any portion of the Leased Property pursuant to this Section 18.1 shall be subject in each instance to all of
the rights of Tenant under this Master Lease and, to the extent necessary, any purchaser or successor Landlord and/or other
controlling persons must be approved by all applicable gaming regulatory agencies to ensure that there is no material impact on
the validity of any of the Gaming Licenses or the ability of Tenant to continue to use the Facilities for gaming activities in
substantially the same manner as immediately prior to Landlord’s sale.
ARTICLE XIX
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 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
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.
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ARTICLE XXI
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 property occurring on or about the Leased Property or adjoining sidewalks under the control of Tenant;
(ii) any use, misuse, non-use, condition, maintenance or repair by Tenant 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 of any Legal Requirement. Any amounts which become payable by Tenant under this Article XXI shall be
paid within ten (10) days after liability therefor is 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 by employees,
agents, assignees, contractors, subcontractors or others acting for or on behalf of Tenant (whether or not they are negligent,
intentional, willful or unlawful), shall be strictly attributable to Tenant.
ARTICLE XXII
22.1 Subletting and Assignment. Tenant shall not, without Landlord’s prior written consent, which, except as
specifically set forth herein, may be withheld in Landlord’s sole and absolute discretion, voluntarily or by operation of law assign
(which term includes any transfer, sale, encumbering, pledge or other transfer or hypothecation) this Master Lease, sublet all or
any part of the Leased Property of any Facility or engage the services of any Person (other than an Affiliate of Tenant that is also
a Guarantor) for the management or operation of any Facility (provided that the foregoing shall not restrict a transferee of Tenant
from retaining a manager necessary for such transferee’s satisfying the requirement set forth in clause (a)(1) of the definition of
“Discretionary Transferee”). 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 and for that reason, except as set forth herein, Landlord retains sole and absolute discretion in
approving or disapproving any assignment or sublease. Any Change in Control shall constitute an assignment of Tenant’s interest
in this Master Lease within the meaning of this Article XXII and the provisions requiring consent contained herein shall apply.
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22.2 Permitted Assignments. Notwithstanding the foregoing, and subject to Section 40.1, Tenant may:
(i) with Landlord’s prior written consent, which consent shall not be unreasonably withheld, allow to occur or
undergo a Change in Control (including without limitation a transfer or assignment of this Master Lease to any third party in
conjunction with a sale by Tenant of all or substantially all of Tenant’s assets relating to the Facilities);
(ii) without Landlord’s prior written consent, assign this Master Lease or sublease the Leased Property to
Tenant’s Parent, a wholly-owned Subsidiary of Tenant’s Parent or a wholly-owned Subsidiary of Tenant if all of the following are
first satisfied: (w) such Affiliate becomes a party to the Guaranty as a Guarantor and in the case of an assignment of this Master
Lease, becomes party to and bound by this Master Lease; (x) Tenant remains fully liable hereunder; (y) the use of the Leased
Property continues to comply with the requirements of this Master Lease; and (z) Landlord in its reasonable discretion shall have
approved the form and content of all documents for such assignment or sublease and received an executed counterpart thereof;
and
(iii) without Landlord’s prior written consent:
(w) undergo a Change in Control of the type referred to in clause (i)(a) of the definition of Change in
Control (such Change in Control, a “Tenant Parent COC”) if a Person acquiring such beneficial ownership or
control (1) is a Discretionary Transferee and (2) the Parent Company of such Discretionary Transferee, if any, has
become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord or, if such
Discretionary Transferee does not have a Parent Company, such Discretionary Transferee has become a Guarantor
and provided a Guaranty on terms reasonably satisfactory to Landlord;
(x) undergo a Change in Control whereby a Person acquires beneficial ownership and control of one
hundred percent (100%) of the Equity Interests in Tenant in connection with a Change in Control that does not
constitute a Tenant Parent COC or a Foreclosure COC (such Change in Control, a “Tenant COC”) if (1) such
Person is a Discretionary Transferee, (2) the Parent Company of such Discretionary Transferee, if any, has become
a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord or, if such Discretionary
Transferee does not have a Parent Company, such Discretionary Transferee has become a Guarantor and provided
a Guaranty on terms reasonably satisfactory to Landlord, and (3) the Adjusted Revenue to Rent Ratio with respect
to all of the Facilities (determined at the proposed effective time of the Change in Control) for the then most
recently preceding four (4) fiscal quarters for which financial statements are available is at least 1.4:1;
(y) assign this Master Lease to any Person in an assignment that does not constitute a Foreclosure
Assignment if (1) such Person is a Discretionary Transferee, (2) such Discretionary Transferee agrees in writing to
assume the
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obligations of the Tenant under this Master Lease without amendment or modification other than as provided
below, (3) the Parent Company of such Discretionary Transferee, if any, has become a Guarantor and provided a
Guaranty on terms reasonably satisfactory to Landlord or, if such Discretionary Transferee does not have a Parent
Company, such Discretionary Transferee has become a Guarantor and provided a Guaranty on terms reasonably
satisfactory to Landlord, and (4) the Adjusted Revenue to Rent Ratio with respect to all of the Facilities
(determined at the proposed effective time of the assignment) for the then most recently preceding four (4) fiscal
quarters for which financial statements are available is at least 1.4:1; or
(z) (i) assign this Master Lease by way of foreclosure of the Leasehold Estate or an assignment-in-lieu of
foreclosure to any Person (any such assignment, a “Foreclosure Assignment”) or (ii) undergo a Change in
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 on a permitted pledge of the Equity Interests in
Tenant or an assignment in lieu of such foreclosure (a “Foreclosure COC”) or (iii) effect the first subsequent sale
or assignment of the Leasehold Estate or Change in 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, to the extent such Permitted Leasehold Mortgagee or Permitted Leasehold
Mortgagee Designee has been diligently attempting to expedite such first subsequent sale from the time it has
initiated foreclosure proceedings taking into account the interest of such Permitted Leasehold Mortgagee or
Permitted Leasehold Mortgagee Designee in maximizing the proceeds of such disposition if (1) such Person is a
Discretionary Transferee, (2) in the case of any Foreclosure Assignment, if such Discretionary Transferee is not a
Permitted Leasehold Mortgagee Designee such Discretionary Transferee agrees in writing to assume the
obligations of the Tenant under this Master Lease without amendment or modification other than as provided
below (which written assumption, in the case of a Permitted Leasehold Mortgagee Foreclosing Party, may be
made by a Subsidiary of a Permitted Leasehold Mortgagee or a Permitted Leasehold Mortgagee Designee) and (3)
if such Discretionary Transferee is not a Permitted Leasehold Mortgagee Foreclosing Party, the Parent Company
of such Discretionary Transferee, if any, has become a Guarantor and provided a Guaranty on terms reasonably
satisfactory to Landlord or, if such Discretionary Transferee does not have a Parent Company, such Discretionary
Transferee has become a Guarantor and provided a Guaranty on terms reasonably satisfactory to Landlord;
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provided that no such Change in Control or assignment referred to in this Section 22.2(iii) shall be permitted without
Landlord’s prior written consent unless, and in which case such consent shall not be unreasonably withheld, (A) the use of
the Leased Property at the time of such Change in Control or assignment and immediately after giving effect thereto is
permitted by Section 7.2 hereof, and (B) Landlord in its reasonable discretion shall have approved the form and content of
all documents for such assignment and assumption and received an executed counterpart thereof (provided no such
approval shall be required in the case of a Tenant Parent COC or a Tenant COC, so long as (A) Tenant remains obligated
under the Master Lease and the Guaranty remains in effect except with respect to any release of Tenant’s Parent permitted
thereunder, (B) the requirements for a Guaranty from the Parent Company or Discretionary Transferee under clause (w) or
(x) above are met, and (C) any modifications to this Master Lease required pursuant to the next succeeding paragraph are
made); and
(iv) without Landlord’s prior written consent, pledge or mortgage its Leasehold Estate to a Permitted Leasehold
Mortgagee and permit a pledge of the equity interests in Tenant to be pledged to a Permitted Leasehold Mortgagee.
Upon the effectiveness of any Change in Control or assignment permitted pursuant to this Section 22.2, such Discretionary
Transferee (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 Change in Control or assignment and such
technical amendments as may be necessary or appropriate in the reasonable opinion of such requesting party in connection with
such Change in Control or assignment including, without limitation, changes to the definition of Change in Control to substitute
the Parent Company (or, if the Discretionary Transferee does not have a Parent Company, the Discretionary Transferee) for
Tenant’s Parent therein and in the provisions of this Master Lease regarding delivery of financial statements and other reporting
requirements with respect to Tenant’s Parent. After giving effect to any such Change in Control or assignment, unless the context
otherwise requires, references to Tenant and Tenant’s Parent hereunder shall be deemed to refer to the Discretionary Transferee or
its Parent Company, as applicable.
Notwithstanding anything contained herein to the contrary, and for the avoidance of doubt, Tenant shall have no right to assign its
interest in this Master Lease (in whole or in part) under this Section 22.2 unless Tenant or its Affiliate is simultaneously assigning
its interest in the Sister Master Lease to the same Person.
22.3 Permitted Sublease Agreements. Notwithstanding the provisions of Section 22.1, but subject to
compliance with the provisions of this Section 22.3 and of Section 40.1, (a) provided that no Event of Default shall have occurred
and be continuing, Tenant shall be permitted to sublease gaming operations to a wholly-owned Subsidiary of Tenant that becomes
a Guarantor by executing the Guaranty in form and substance reasonably satisfactory to Landlord, (b) the Effective Date
Subleases shall be permitted without any further consent from Landlord (provided that any amendments or modifications thereto
shall be subject to the requirements of this Section 22.3 and 22.4), and (c) provided that no Event of Default shall have
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occurred and be continuing, from and after the Effective Date, Tenant may enter into a sublease, license or similar occupancy
agreement without the prior written consent of Landlord, provided that (i) (1) the space subject to such sublease agreement will
not be used for gaming purposes (and any such space sublet for any gaming use will require Landlord’s prior written consent,
which consent may not be unreasonably withheld) and (2) is not for the all or substantially all of the applicable Facility, unless in
each case such sublease agreement is with a wholly-owned Subsidiary of Tenant that becomes a Guarantor by executing the
Guaranty in form and substance reasonably satisfactory to Landlord; (ii) all sublease agreements under clauses (b) and (c) of this
Section 22.3 are made in the normal course of the Primary Intended Use and to concessionaires or other third party users or
operators of portions of the Leased Property in furtherance or support of the Primary Intended Use, except with respect to the
Effective Date Subleases; (iii) [intentionally omitted]; and (iv) Landlord shall have the right to reasonably approve the identity of
any subtenants under this Section 22.3 (except with respect to subtenants under the Specified Subleases) that will be operating all
or portions of the Leased Property for its Primary Intended Use to ensure that all are adequately capitalized and competent and
experienced for the operations which they will be conducting. 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 (x) a waiver by Landlord of any of the provisions of this Master Lease, (y) the acceptance by Landlord of such subtenant
as a tenant or (z) a release of Tenant from the future performance of its obligations hereunder. If reasonably requested by Tenant
in connection with a sublease permitted under clause (c) above, Landlord and such sublessee shall enter into a subordination,
non-disturbance and attornment agreement with respect to such sublease in a form reasonably satisfactory to Landlord (and if a
Facility Mortgage is then in effect, Landlord shall use reasonable efforts to cause the Facility Mortgagee to enter into such
subordination, non- disturbance and attornment agreement).
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;
(iii) except as otherwise provided herein, no subtenant or assignee shall be permitted to further sublet all or any
part of the applicable Leased Property 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 under Section 22.3(a) may pledge
and mortgage its sublease hold 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, subject to Article XXXVI, at
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Landlord’s option, the subtenant shall make full and complete attornment to Landlord for the balance of the term of the sublease,
which attornment shall be evidenced by an agreement in form and substance satisfactory to Landlord and which the subtenant
shall execute and deliver within five (5) 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 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 written notice from Landlord stating that this Master Lease has been
cancelled, surrendered or terminated, then, subject to Article XXXVI, 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, subletting or management arrangement, including
reasonable attorneys’, architects’, engineers’ or other consultants’ fees whether or not such sublease, assignment or management
agreement is actually consummated.
22.6 No Release of Tenant’s Obligations; Exception. No assignment (other than a permitted transfer pursuant
to Section 22.2(i) or Section 22.2(iii)(y) or Section 22.2(iii)(z)(1) or Section 22.2(iii)(z)(3), in connection with a sale or
assignment of the 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. 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.
22.7 Perryville and Meadows Severance Leases. Notwithstanding anything contained in this Master Lease to
the contrary (including, but not limited to, Section 22.1):
(a) subject to no Event of Default having occurred and being continuing at the time of exercise and as of
the Severance Transfer Date, Tenant shall have the right to assign and sell Tenant’s entire Leasehold Estate in the
Meadows Facility and/or the Perryville Facility (each a “Severance Facility”) and/or Tenant’s entire Equity Interest in
any Subsidiary that owns the Gaming License applicable to a Severance Facility and operates such Severance Facility (a
“Severance Transfer”) to a Discretionary Transferee if the divesture of such Severance Facility is reasonably likely, as
determined in good faith by Tenant’s Parent and Landlord, on the advice of counsel, to
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be required by a federal or state governmental authority or regulatory agency in connection with Tenant’s, Tenant’s
Parent, or their respective Affiliate’s acquisition and/or leasing of any new Gaming Facility; provided, that:
(i) Tenant shall give Landlord not less than sixty (60) days’ written notice (a “Severance Transfer Notice”),
which notice shall specify (i) in reasonable detail the nature of the Severance Transfer and the Severance
Facility(ies) included in such Severance Transfer, including the terms upon which Tenant has agreed to
assign and sell its interest in the Leasehold Estate pertaining to the Meadows Facility and/or the Perryville
Facility, as applicable (the “Severance Transfer Terms”), (ii) the proposed Severance Transfer Date,
which closing date shall be not less than sixty (60) days after the date of such Severance Transfer Notice,
(iii) the identity of the proposed Discretionary Transferee and such information as is reasonably necessary
to determine that such Person satisfies the requirements of a Discretionary Transferee, (iv) the proposed
form of the Severance Lease and Replacement Guaranty (if required hereunder), (v) the proposed fair
market value of the Severance Facility, prior to entry into a definitive agreement with respect to a
Severance Transfer, and (vi) an amendment to this Master Lease removing the applicable Severance
Facility from the definition of Leased Property and decreasing the Base Rent payable hereunder by an
amount equal to the applicable Severance Lease Rent, provided, however, Tenant may delay remove or
cancel the Severance Transfer Notice in the event that the underlying sale of a Severance Facility is
delayed or cancelled for any reason. Notwithstanding the foregoing to the contrary, in the event the
Severance Transfer comprises solely of Facilities subject to this Master Lease or the Sister Master Lease
(and does not include gaming facilities not subject to this Master Lease or Sister Master Lease), Landlord
shall be given the opportunity, exercisable by Landlord delivering written notice thereof to Tenant within
thirty (30) days following Landlord’s receipt of a Severance Transfer Notice to designate that the tenant
under the Severance Lease provided that such Person is willing to acquire a leasehold interest in the
Severance Facility upon the Severance Transfer Terms (the Person selected by Tenant (or Landlord,
pursuant to the terms of this Section 22.7(a)(i), if applicable) to be the tenant under the Severance Lease
being the “Severance Lease Tenant”). In no event shall such opportunity given to Landlord under this
Section 22.7(a)(i) cause a delay in the Severance Transfer closing beyond the date set forth in the original
Severance Transfer Notice. For the avoidance of doubt, in no event shall Landlord be obligated to accept a
Severance Lease that includes facilities other than the Meadows Facility and/or the Perryville Facility and
Tenant shall have no right to effectuate a Severance Transfer unless it enters into a Severance Lease
pursuant to, and in accordance with, the terms of this Section 22.7.
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(ii) At the closing of any Severance Transfer, Landlord and Tenant shall enter into an amendment to this Master
Lease providing that (i) the Severance Facilities included shall be excluded from the Leased Property
hereunder and (ii) Rent hereunder shall be reduced by the amount of the Severance Lease Rent with
respect to the Severance Facilities (the “Severance Facility Lease Amendment”).
(iii) At the closing of any Severance Transfer, Tenant shall cause the Severance Lease Tenant (or its parent
entity) to deliver a Replacement Guaranty (if required hereunder).
(iv) At the closing of the Severance Transfer, Landlord shall enter into one (1) or more separate leases (each, a
“Severance Lease”) with respect to the applicable Severance Facility with the Severance Lease Tenant
(provided, however, the Severance Facilities shall be in a combined Master Lease in the event that a single
tenant has been identified for both facilities) effective as of the Severance Transfer Date for the remaining
Term and on substantially the same terms and conditions as, and in any case no less favorable to Landlord
than, the terms and conditions of this Master Lease, including, without limitation, that the term of the
Severance Lease shall be co-terminus with this Master Lease, provided, however, appropriate adjustments
as necessary shall be made for such lease to be a single property lease (including to Exhibits and
Schedules), including as follows:
(1) The rent initially payable under the Severance Lease as of the Severance Transfer Date will be
equal to the Severance Lease Rent, and shall thereafter be subject to escalation and adjustment consistent
with the provisions of this Master Lease (as if this Master Lease shall have commenced on the Severance
Transfer Date), modified to reflect that the rent payable under the Severance Lease will be calculated on a
stand-alone basis with respect to the Severance Facility only;
(2) The Severance Lease shall contain minimum capital expenditure requirements consistent with
the capital expenditure requirements in Section 9.1(e) of this Master Lease, modified to reflect that such
minimum capital expenditure requirements will apply to the Severance Lease on a stand-alone basis; and
(3) Section 22.7 of this Master Lease shall be omitted in its entirety from the Severance Lease.
(v) The original Guaranty delivered to Landlord shall be of no further force or effect solely with respect to any
obligations of Tenant and Guarantor related to the Severance Facilities, first occurring from and after the
Severance Transfer Date. For the avoidance of doubt, Tenant and
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Guarantor shall be liable for any and all obligations of Tenant occurring prior to the Severance Transfer
Date.
(vi) In the event that, as part of a proposed Severance Transfer by Tenant, Tenant is offered by the seller the
opportunity to partner with a landlord in an opco/propco structure (or the owner of the land and
improvements is looking to sell), the Severance Transfer Notice shall additionally include the material
terms under which such seller will offer Landlord an opportunity to participate in the Severance Transfer as
propco landlord and in the event (at its sole discretion) Landlord is interested in pursuing such transaction,
the parties shall negotiate in good faith the terms under which Landlord shall be able to participate.
(b) As a condition to the effectiveness of any Severance Transfer, (i) Tenant shall require and cause the Parent
Company of such Severance Lease Tenant, or if such Severance Lease Tenant does not have a Parent Company, the Severance
Lease Tenant, to deliver to Landlord a Replacement Guaranty and (ii) Landlord shall have received executed copies of all
documents for the relevant Severance Transfer in a form reasonably satisfactory to Landlord.
(c) If either of Landlord or the Severance Lease Tenant has any comments or revisions that are commercially
reasonable or are required to cause the proposed Severance Lease and/or the Severance Facility Lease Amendment to comply
with the provisions of this Master Lease, then the Severance Lease Tenant and Landlord shall negotiate in good faith to reconcile
the applicable issue(s).
(d) Upon the execution and delivery of a Severance Lease, the applicable Severance Facility Lease Amendment
and the Replacement Guaranty (if applicable) in accordance with this Section 22.7, this Master Lease shall be terminated with
respect to the applicable Severance Facility(ies), such Severance Facility(ies) shall cease to constitute Leased Property hereunder,
neither Tenant nor Landlord shall have any further liabilities or obligations under this Master Lease, arising from and after the
Severance Transfer Date, with respect to the applicable Severance Facility(ies), and the Guaranty shall automatically, and without
further action by any party, cease to apply with respect to any Obligations (as defined in the Guaranty) with respect to the
applicable Severance Facility(ies) to the extent arising from and after the Severance Transfer Date (provided that any such
Obligations arising prior to the Severance Transfer Date shall not be terminated, limited or affected by or upon entry into the
Severance Lease or the Severance Facility Lease Amendment). Landlord and Tenant shall each take such actions and execute and
deliver such documents, including, without limitation, the Severance Lease and new or amended Memorandum(s) of Lease and,
if requested by the other, as are reasonably necessary and appropriate to effectuate fully the provisions and intent of this Section
22.7, 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 Severance Facilities, including memoranda of lease with respect to such Severance Leases and
amendments of all existing memoranda of lease with respect to this Master Lease and an amendment of this Master Lease.
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No default under any Severance Lease shall be a default under this Master Lease and no default under this Master Lease shall be
a default under any Severance Lease.
(e) The execution and implementation of a Severance Transfer shall be subject to obtaining all Required
Governmental Approvals by Tenant and/or the Qualified Successor Tenant (and each of their respective applicable Affiliates) in
accordance with applicable law (including applicable Gaming Regulations). Each of Landlord and Tenant shall, and shall cause
its Affiliates to, (a) file or cause to be filed, as promptly as practicable, and in any event no later than ten (10) days, following the
date on which Landlord and Tenant agree on the form of the Severance Lease, all applications and supporting documentation
necessary to obtain all Required Governmental Approvals for the Severance Facility Severance Lease and the Severance
Transfer, (b) use commercially reasonable efforts in order to obtain such Required Governmental Approvals as promptly as
practicable, and (c) use commercially reasonable efforts in order to assist the other party in its efforts to obtain such Required
Governmental Approvals as promptly as practicable. Landlord, at no cost or expense to Landlord, agrees to reasonably cooperate
with Tenant and use commercially reasonable efforts to provide Regulatory Approval Supporting Information that is reasonably
requested by Tenant in connection with the Severance Transfer, in Tenant’s or the Qualified Successor Tenant’s efforts to obtain
any Required Governmental Approvals.
(f) Each of Tenant and Landlord shall furnish to the other party Regulatory Approval Supporting Information
and reasonable assistance as such party may reasonably request in connection with obtaining the Required Governmental
Approvals. Subject to Section 23.2 and applicable laws relating to the exchange of information, outside counsel for Landlord and
Tenant shall have the right to review in advance, and to the extent practicable each party shall consult with the other in
connection with, all of the information relating to Landlord or Tenant, as the case may be, and any of their respective subsidiaries,
that appears in any filing made with, or written materials submitted to, any Person and/or any governmental authority in
connection with the Severance Transfer; provided, that the foregoing shall not apply to applications made with respect to Gaming
Licenses and other gaming approvals required under applicable Gaming Regulations that include personal identifying
information or other similarly sensitive or competitive information (as reasonably determined by such party in good faith). In
exercising the foregoing rights, each of Landlord and Tenant shall act reasonably and as promptly as practicable. Subject to
applicable law and the instructions of any governmental authority, Landlord and Tenant shall keep the other party reasonably
apprised of the status of matters relating to the completion of the Severance Transfer, including promptly furnishing the other
party with copies of notices or other written substantive communications received from any governmental authority and/or other
Person with respect to the Severance Transfer and, to the extent practicable under the circumstances, shall provide the other party
with the opportunity to participate in any meeting with any governmental authority in respect of any substantive filing,
investigation or other inquiry in connection with the Severance Transfer.
(g) In the event Tenant desires to effectuate a Severance Transfer, Tenant and Landlord shall use commercially
reasonable efforts to effectuate the Severance Transfer, if applicable, and minimize all costs, fees (including consent fees), taxes
and expenses incurred by
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Tenant and Landlord in consummating the Severance Transfer. All reasonable, documented out-of-pocket costs and expenses
relating to a Severance Transfer (including reasonable, documented attorneys’ fees and other reasonable, documented out-of-
pocket costs incurred by Landlord for outside counsel, if any) shall be borne by Tenant and not Landlord.
22.8 Specified Developer Default; Project Developer Default. In the event a Specified Developer Default
occurs under the Development Agreement, Landlord shall have the right, but not the obligation, by delivering written notice
thereof to Tenant to either (1) require Tenant to sell the Affected Project pursuant to, and in accordance with, Article 36 of this
Master Lease, or (2) deem such Specified Developer Default a Permitted Discontinuance Event (as defined in the Development
Agreement). In the event, Landlord elects to proceed under clause (2) above, Tenant shall be obligated to (a) reimburse Landlord
for any and all costs and expenses incurred by Landlord or its Affiliates as more particularly set for in Section 6 of the
Development Agreement and (b) restore the affected Facility to the same condition in which it existed prior to the
commencement of Tenant’s construction of the applicable Project (as defined in the Development Agreement). In the event that a
Project Developer Default occurs under the Development Agreement, Landlord shall have the right, but not the obligation, by
delivering written notice thereof to Tenant to require Tenant to sell the Affected Project pursuant to, and in accordance with,
Article 36 of the Master Lease. Notwithstanding anything contained in this Master Lease to contrary, nothing in this Master
Lease shall be construed to limit Landlord’s right to pursue the rights and remedies available to Landlord under the Development
Agreement.
23.1 Officer’s Certificates and Financial Statements.
ARTICLE XXIII
(a) Officer’s Certificate. Each of Landlord and Tenant shall, at any time and from time to time 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
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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. Each Guarantor or Tenant, as the case may be, shall deliver a written notice within two (2) Business Days of
obtaining knowledge of the occurrence of a default hereunder. Such notice shall include a detailed description of the default and
the actions such Guarantor or Tenant has taken or shall take, if any, to remedy such default.
(b) Statements. Tenant shall furnish the following statements to Landlord:
(i) Within sixty-five (65) days after the end of Tenant Parent’s Fiscal Years (commencing with the Fiscal Year
ending December 31, 2023 or concurrently with the filing by Tenant’s Parent of its annual report on Form 10-K with the
SEC, whichever is earlier: (x) Tenant’s Parent’s Financial Statements; (y) a certificate, executed by the chief financial
officer or treasurer of the Tenant’s Parent (a) certifying that no default has occurred under this Master Lease or, if such a
default has occurred, specifying the nature and extent thereof and any corrective action taken or proposed to be taken with
respect thereto and (b) setting forth the calculation of the financial covenants set forth in Section 23.3 hereof in reasonable
detail as of such Fiscal Year (commencing with the Fiscal Year ending December 31, 2023; and (z) a report with respect
to Tenant’s Parent’s Financial Statements from Tenant’s Parent’s accountants, which report shall be unqualified as to
going concern and scope of audit of Tenant’s Parent and its Subsidiaries (excluding any qualification as to going concern
relating to any debt maturities in the twelve month period following the date of such audit or any projected financial
performance or covenant default in any Material Indebtedness or this Master Lease in such twelve month period) and
shall provide in substance that (a) such consolidated financial statements present fairly the consolidated financial position
of Tenant’s Parent and its Subsidiaries as at the dates indicated and the results of their operations and cash flow for the
periods indicated in conformity with GAAP and (b) 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;
(ii) Within forty-five (45) days after the end of each of the first three (3) fiscal quarters of the Tenant’s Parent’s
Fiscal Year (commencing with the fiscal quarter ending March 31, 2023 or concurrently with the filing by Tenant’s Parent
of its quarterly report on Form 10-Q with the SEC, whichever is earlier, a copy of Tenant’s Parent’s Financial Statements
for such period, together with a certificate, executed by the chief financial officer or treasurer of Tenant’s Parent (i)
certifying that no default has occurred or, if such a default has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto, (ii) setting forth the calculation of the financial
covenants set forth in Section 23.3 hereof in reasonable detail as of such quarter, to the extent one complete Test Period
has been completed which has commenced following the date of this Master Lease and (iii) certifying that such Financial
Statements fairly present, in all material respects, the financial position and
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results of operations of Tenant’s Parent and its Subsidiaries on a consolidated basis in accordance with GAAP (subject to
normal year-end audit adjustments and the absence of footnotes);
(iii) Promptly following Landlord’s request from time to time, (a) five-year forecasts of Tenant’s income
statement and balance sheet covering such quarterly and annual periods as may be reasonably requested by Landlord, and
in a format consistent with Tenant Parent’s quarterly and annual financial statements filed with the SEC, and such
additional financial information and projections as may be reasonably requested by Landlord in connection with
syndications, private placements, or public offerings of GLP’s or Landlord’s 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 or GLP may require for its ongoing filings with the SEC under both the Securities Act
and the Securities Exchange Act of 1934, as amended, including, but not limited to 10-Q Quarterly Reports, 10-K Annual
Reports and registration statements to be filed by Landlord or GLP during the Term of this Master Lease, the Internal
Revenue Service (including in respect of GLP’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 GLP or its
Subsidiaries subject to Section 23.1(c) below);
(iv) Within thirty-five (35) days after the end of each calendar month, a copy of Tenant’s income statement for
such month and Tenant’s balance sheet as of the end of such month (which may be subject to quarterly and year-end
adjustments and the absence of footnotes); provided, however, that with respect to each calendar quarter, Tenant shall
provide such financial reports for the final month thereof as soon as is reasonably practicable following the closing of the
books for such month and in sufficient time so that Landlord or its Affiliate is able to include the operational results for
the entire quarter in its current Form 10-Q or Form 10-K (or supplemental report filed in connection therewith);
(v) 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 carries on any part of the
Primary Intended Use of all or any portion of the Leased Property; and
(vi) As soon as it is prepared and in no event later than sixty (60) days after the end of each Fiscal Year, a capital
and operating budget for each Facility for that Fiscal Year
(vii) 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
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internal financial and reporting database and (ii) permit Landlord to calculate any rent, fee or other payments due under
Ground Leases.
(viii) Tenant also agrees that Landlord shall have audit rights with respect to any such information provided by
Tenant to the extent such audit is reasonably required to confirm Tenant’s compliance with the Master Lease terms
(including, without limitation, the calculation of Net Revenues to the extent reasonably required to confirm Tenant’s
compliance with Section 23.3(a) of the Master Lease).
(c) Notwithstanding the foregoing, Tenant shall not be obligated (1) to provide information or assistance that
could give Landlord or its Affiliates a “competitive” advantage with respect to markets in which GLP and Tenant or Tenant’s
Parent might be competing at any time (it being understood that Landlord shall retain audit rights with respect to such
information to the extent required to confirm Tenant’s compliance with the Master Lease terms (and GLP’s compliance with
Securities Exchange Commission, 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 GLP) are provided
access to such information) or (2) to provide information that is subject to the quality assurance immunity or is subject to
attorney-client privilege or the attorney work product doctrine.
23.2 Public Offering Information. Tenant specifically agrees that Landlord may include financial information
and such information concerning the operation of the Facilities (1) which is publicly available or (2) 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 GLP’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, to the extent
such information is not publicly available, the recipients thereof shall be obligated to maintain the confidentiality thereof 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 GLP shall revise or change the wording of information previously publicly disclosed by Tenant and
furnished to Landlord or GLP 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 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, participation in road shows and other
presentations at Landlord’s or GLP’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 GLP or any direct or indirect parent entity of Landlord or GLP or to
satisfy GLP’s or Landlord’s SEC disclosure requirements or the disclosure requirements of any direct or indirect parent entity of
Landlord or GLP. In this regard,
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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.
23.3 Financial Covenants.
(a) Tenant on a consolidated basis with respect to all of the Facilities shall maintain an Adjusted Revenue to
Rent Ratio 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, 2023) of at least 1.1:1.
(b) In the event that Tenant does not satisfy at any time the Adjusted Revenue to Rent Ratio set forth in Section
23.3(a), Tenant’s Parent shall not be permitted to make any Restricted Payment until Tenant is in compliance with such ratio in a
subsequent period.
23.4 Landlord Obligations. Landlord acknowledges and agrees that certain of the information contained in the
Financial Statements and/or in the Financials 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, Landlord shall have the right to share such information with GLP and their respective officers, employees, directors,
Facility Mortgagee, agents and lenders party to material debt instruments entered into by GLP or Landlord, actual or prospective
arrangers, underwriters, investors or lenders with respect to Indebtedness or Equity Interests that may be issued by GLP or
Landlord, rating agencies, accountants, attorneys and other consultants (the “Landlord Representatives”), provided that 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 and to comply with all federal, state and other securities laws applicable
with respect to such information and (ii) that neither it nor any 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 or GLP (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 and to comply with all federal,
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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 GLP 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 or GLP).
ARTICLE XXIV
24.1 Landlord’s Right to Inspect. 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.
ARTICLE XXV
25.1 No Waiver. No delay, omission or failure by Landlord 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
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
26.1 Remedies Cumulative. 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
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.
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 XXVIII
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ARTICLE XXIX
29.1 Conveyance by Landlord. If Landlord or any successor owner of the Leased Property shall convey the
Leased Property in accordance with the 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 the 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.
ARTICLE XXX
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 thereafter provided for in
this Master Lease or consented to by Tenant. 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
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; provided, however, if Tenant has not consented to any such Facility Mortgage entered into by Landlord after the
Commencement Date, Tenant’s obligations with respect thereto shall be subject to the limitations set forth in Section 31.3. 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 shall be conditioned upon the execution by
the holder of each Facility Mortgage and delivery to Tenant of a nondisturbance and attornment agreement substantially in the
form attached hereto as Exhibit F-1 (provided that upon the request of Landlord such nondisturbance and attornment agreement
shall also incorporate subordination provisions referenced above, as contemplated below, and be in substantially the form
attached hereto as Exhibit F-2, and be executed by Tenant as well as Landlord), which will 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 in a foreclosure
or similar proceeding or in a
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transfer in lieu of any such foreclosure or a successor owner of the Leased Property (each, a “Foreclosure Purchaser”) and
which provides that so long as there is not then outstanding and continuing an Event of Default under this Master Lease, the
holder of such Facility Mortgage, and any Foreclosure Purchaser shall disturb neither Tenant’s leasehold interest or possession of
the Leased Property in accordance with the terms hereof, nor any of its 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 (A) 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, or (B) reasonable amendments or modifications to this Master
Lease as a condition thereto, Tenant hereby agrees to execute and deliver the same so long as any such amendments or
modifications do not (i) increase Tenant’s monetary obligations under this Master Lease, (ii) adversely increase Tenant’s non-
monetary obligations under this Master Lease in any material respect, or (iii) diminish Tenant’s rights under this Master Lease in
any material respect.
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) 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 modification or amendment to this Master Lease or any previous
prepayment of more than one month’s rent, unless such 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,
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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.
31.3 Compliance with Facility Mortgage Documents. (a) Tenant acknowledges that any Facility Mortgage
Documents executed by Landlord or any Affiliate of Landlord may impose certain obligations on the “borrower” or other
counterparty thereunder to comply with or cause the operator and/or lessee of a Facility to comply with all representations,
covenants and warranties contained therein relating to such Facility and the operator and/or lessee of such Facility, including,
covenants relating to (i) the maintenance and repair of such Facility; (ii) maintenance and submission of financial records and
accounts of the operation of such Facility and related financial and other information regarding the operator and/or lessee of such
Facility and such Facility itself; (iii) the procurement of insurance policies with respect to such Facility; and (iv) without limiting
the foregoing, compliance with all applicable Legal Requirements relating to such Facility and the operation of the Business
thereof. For so long as any Facility Mortgages encumber the Leased Property or any portion thereof or interest therein, Tenant
covenants and agrees, at its sole cost and expense and for the express benefit of Landlord, to operate the applicable Facility(ies)
in strict compliance with the terms and conditions of the Facility Mortgage Documents (other than payment of any indebtedness
evidenced or secured thereby) and to timely perform all of the obligations of Landlord relating thereto, or to the extent that any of
such duties and obligations may not properly be performed by Tenant, Tenant shall cooperate with and assist Landlord in the
performance thereof (other than payment of any indebtedness evidenced or secured thereby); provided, however, notwithstanding
the foregoing, this Section 31.3(a) shall not be deemed to, and shall not, impose on Tenant obligations which (i) increase Tenant’s
monetary obligations under this Master Lease, (ii) adversely increase Tenant’s non-monetary obligations under this Master Lease
in any material respect, or (iii) diminish Tenant’s rights under this Master Lease in any material respect. For purposes of the
foregoing, any proposed implementation of new financial covenants shall be deemed to diminish Tenant’s rights under this
Master Lease in a material respect (it being understood that Landlord may agree to such financial covenants in any Facility
Mortgage Documents and such financial covenants will not impose obligations on Tenant). If any new Facility Mortgage
Documents to be executed by Landlord or any Affiliate of Landlord would impose on Tenant any obligations under this Section
31.3(a), Landlord shall provide copies of the same to Tenant for informational purposes (but not for Tenant’s approval) prior to
the execution and delivery thereof by Landlord or any Affiliate of Landlord; provided, however, that neither Landlord nor its
Affiliates shall enter into any new Facility Mortgage Documents imposing obligations on Tenant with respect to impounds that
are more restrictive than obligations imposed on Tenant pursuant to this Master Lease.
(b) Without limiting or expanding Tenant’s obligations pursuant to Section 31.3(a), during the Term of this
Master Lease, Tenant acknowledges and agrees that, except as expressly provided elsewhere in this Master Lease, it shall
undertake at its own cost
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and expense the performance of any and all repairs, replacements, capital improvements, maintenance items and all other
requirements relating to the condition of a Facility that are required by any Facility Mortgage Documents or by Facility
Mortgagee, and Tenant shall be solely responsible and hereby covenants to fund and maintain any and all impound, escrow or
other reserve or similar accounts required under any Facility Mortgage Documents as security for or otherwise relating to any
operating expenses of a Facility, including any capital repair or replacement reserves and/or impounds or escrow accounts for
taxes or insurance premiums (each a “Facility Mortgage Reserve Account”); provided, however, this Section 31.3(b) shall not
(i) increase Tenant’s monetary obligations under this Master Lease, (ii) adversely increase Tenant’s non- monetary obligations
under this Master Lease in any material respect, (iii) diminish Tenant’s rights under this Master Lease in any material respect, or
(iv) impose obligations to fund such reserve or similar accounts in excess of amounts required under this Master Lease in respect
of reserve or similar accounts under the circumstances required under this Master Lease; and provided, further, that any amounts
which Tenant is required to fund into a Facility Mortgage Reserve Account with respect to satisfaction of any repair or
replacement reserve requirements imposed by a Facility Mortgagee or Facility Mortgage Documents shall be credited on a dollar
for dollar basis against the mandatory expenditure obligations of Tenant for such applicable Facility(ies) under Section 9.1(e).
During the Term of this Master Lease and provided that no Event of Default shall have occurred and be continuing hereunder,
Tenant shall, subject to the terms and conditions of such Facility Mortgage Reserve Account and the requirements of the Facility
Mortgagee(s) thereunder (and the related Facility Mortgage Documents), have access to and the right to apply or use (including
for reimbursement) to the same extent as Landlord all monies held in each such Facility Mortgage Reserve Account for the
purposes and subject to the limitations for which such Facility Mortgage Reserve Account is maintained, and Landlord agrees to
reasonably cooperate with Tenant in connection therewith. Landlord hereby acknowledges that funds deposited by Tenant in any
Facility Mortgage Reserve Account are the property of Tenant and Landlord is obligated to return the portion of such funds not
previously released to Tenant within fifteen (15) days following the earlier of (x) the expiration or earlier termination of this
Master Lease with respect to such applicable Facility, (y) the maturity or earlier prepayment of the applicable Facility Mortgage
and obligations secured thereby, or (z) an involuntary prepayment or deemed prepayment arising out of the acceleration of the
amounts due to a Facility Mortgagee or secured under a Facility Mortgage as a result of the exercise of remedies under the
applicable Facility Mortgage or Facility Mortgage Documents; provided, however, that the foregoing shall not be deemed or
construed to limit or prohibit Landlord’s right to bring any damage claim against Tenant for any breach of its obligations under
this Master Lease that may have resulted in the loss of any impound funds held by a Facility Mortgagee.
ARTICLE XXXII
32.1 Hazardous Substances. Notwithstanding anything contained herein to the contrary, the following
provisions shall apply to all Leased Property:
(a) 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
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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.
(b) 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, cleanup, removal, 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 any Hazardous Substance in, on, under or removed from the
Leased Property, including any complaints, notices, warnings or assertions of violations in connection therewith.
(c) 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
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.
(d) 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, resulting from or incident to, directly or indirectly, before (except to the extent first
discovered after the end of the Term) or during (but not after) the Term or such portion thereof during which the Leased Property
is leased to Tenant (i) the production, 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
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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:
(e) in investigating any and all matters relating to the Handling of any Hazardous Substances, in, on, from, under
or about the Leased Property;
(f) in bringing the Leased Property into compliance with all Legal Requirements; and
(g) 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
written 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.
(h) 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 written 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, 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
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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
33.1 Memorandum of Lease. Landlord and Tenant shall enter into one or more short form memoranda of this
Master Lease, in form suitable for recording in each county or other applicable location in which the Leased Property is located.
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.
33.2 Reserved.
33.3 Tenant Financing. If, in connection with granting any Permitted Leasehold Mortgage or entering into a
Debt Agreement, Tenant shall reasonably request (A) 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, or (B) reasonable
amendments or modifications to this Master Lease as a condition thereto, Landlord hereby agrees to execute and deliver the same
so long as any such amendments or modifications do not (i) increase Landlord’s monetary obligations under this Master Lease,
(ii) adversely increase Landlord’s non-monetary obligations under this Master Lease in any material respect, (iii) diminish
Landlord’s rights under this Master Lease in any material respect, (iv) adversely impact the value of the Leased Property or (v)
adversely impact Landlord’s (or any Affiliate of Landlord’s) tax treatment or position.
34.1 Expert Valuation Process.
ARTICLE XXXIV
(a) In the event that the opinion of an “Expert” is required under this Master Lease and Landlord and Tenant
have not been able to reach agreement on such Person after at least ten (10) days of good faith negotiations, then either party shall
each have the right to seek appointment of the Expert by the “Appointing Authority,” as defined below, by writing to the
Appointing Authority and asking it to serve as the Appointing Authority and appoint the Expert. The Appointing Authority shall
appoint an Expert who is independent of the parties and has at least ten (10) years of experience valuing commercial real estate
and/or in leasing or other matters, as applicable with respect to any of the matters to be determined by the Expert.
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(b) The “Appointing Authority” shall be (i) the Institute for Conflict Prevention and Resolution (also known as,
and shall be defined herein as, the “CPR Institute”), unless it is unable to serve, in which case the Appointing Authority shall be
(ii) the American Arbitration Association (“AAA”) under its Arbitrator Select Program for non-administered arbitrations or
whatever AAA process is in effect at the time for the appointment of arbitrators in cases not administered by the AAA, unless it
is unable to serve, in which case (iii) the parties shall have the right to apply to any court of competent jurisdiction to appoint an
Appointing Authority or an Expert in accordance with the court’s power to appoint arbitrators. The CPR Institute and the AAA
shall each be considered unable to serve if it no longer exists, or if it no longer provides neutral appointment services, or if it does
not confirm (in form or substance) that it will serve as the Appointing Authority within thirty (30) days after receiving a written
request from either Landlord or Tenant to serve as the Appointing Authority, or if, despite agreeing to serve as the Appointing
Authority, it does not confirm its Expert appointment within sixty (60) after receiving such written request. The Appointing
Authority’s appointment of the Expert shall be final and binding upon the parties. The Appointing Authority shall have no power
or authority except to appoint the Expert, and no rules of the Appointing Authority shall be applied to the valuation or other
determination of the Expert other than the rules necessary for the appointment of the Expert.
(c) Once the Expert is finally selected, either by agreement of the parties or by confirmation to the parties from
the Appointing Authority, the Expert will determine the matter in question, by proceeding as follows:
(i) In the case of an Expert required for the purpose of Section 1.4, each of Landlord and Tenant shall have ten
(10) days to submit to the Expert its position as to the remaining useful life of the applicable Barge-Based Facility and any
materials it wishes the Expert to consider when determining the remaining useful life of the applicable Barge-Based
Facility. The Expert, in his or her sole discretion, shall consider any and all materials that he or she deems relevant to
making such determination, except that there shall be no live hearings and the parties shall not be permitted to take
discovery. The Expert may submit written questions or information requests to the parties, and the parties may respond
with written materials within a time frame agreed by the parties or, absent agreement by the parties, set by the Expert. The
Expert shall render his or her determination of the remaining useful life of the applicable Barge-Based Facility in writing
and it shall be final and binding on the parties.
(ii) In the case of an Expert required for any other purpose, including without limitation under Section 13.2 and
Section 36.2(a) hereof, each of Landlord and Tenant shall have a period of ten (10) days to submit to the Expert its
position as to the Maximum Foreseeable Loss, as to the replacement cost of the Facilities as of the date of the expiration
of this Master Lease and as to the appropriate per annum yield for leases between owners and operators of Gaming
Facilities at the time in question (or as to any other matter to be resolved by an Expert hereunder), as the case may be, and
any materials each of Landlord and Tenant wishes the Expert to consider when determining such Maximum Foreseeable
Loss, replacement cost of the Facilities and the appropriate
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per annum yield for leases between owners and operators of Gaming Facilities (or as to any other matter to be resolved by
an Expert hereunder), and the Expert will then make the relevant determination, by a “baseball arbitration” proceeding
with the Expert 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, except that in the case of a
determination in respect of a dispute under Section 36.2(a), the Expert in its discretion may choose the position of one
party with respect to the replacement cost of the Facilities as of the date of the expiration of this Master Lease and the
position of the other party with respect to the appropriate per annum yield for leases between owners and operators of
Gaming Facilities at the time in question), which shall then be binding on the parties hereto. The Expert, in his or her sole
discretion, shall consider any and all materials that he or she deems relevant, except that there shall be no live hearings
and the parties shall not be permitted to take discovery. The Expert may submit written questions or information requests
to the parties, and the parties may respond with written materials within a time frame agreed by the parties or, absent
agreement by the parties, set by the Expert.
(d) All communications between a party and either the Appointing Authority or the Expert shall also be copied
to the other party. The parties shall cooperate in good faith to facilitate the valuation or other determination by the Expert.
(e) The costs of any Appointing Authority or Expert engaged under Section 34.1(c)(i) of this Master Lease shall
be shared equally by Landlord and Tenant. If Landlord pays such Expert or Appointing Authority, fifty percent (50%) of such
costs shall be Additional Charges hereunder and if Tenant pays such Expert or Appointing Authority, fifty percent (50%) of such
costs shall be a credit against the next Rent payment hereunder. The costs of any Appointing Authority or Expert engaged with
respect to any issue under Section 34.1(c)(ii) of this Master Lease shall be borne by the party against whom the Expert rules on
such issue. If Landlord pays such Expert or Appointing Authority and is the prevailing party, such costs shall be Additional
Charges hereunder and if Tenant pays such Expert or Appointing Authority and is the prevailing party, such costs shall be a credit
against the next Rent payment hereunder.
ARTICLE XXXV
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 express courier
service, by facsimile transmission, by email or by an overnight express service to the following address:
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To Tenant:
With a copy to:
(that shall not
constitute notice)
To Landlord:
Penn Tenant, LLC c/o
PENN Entertainment, Inc.
825 Berkshire Boulevard, Suite 200
Wyomissing, Pennsylvania 19610
Attention: Chief Legal Officer
Email: Harper.Ko@pennentertainment.com
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Zachary S. Podolsky, Esq.
Email: ZSPodolsky@wlrk.com
Attention: Mark A. Koenig, Esq.
Email: MAKoenig@wlrk.com
and
Ballard Spahr LLP
1735 Market Street, 51st Floor
Philadelphia, Pennsylvania 19103
Attention: Joseph W. Weill, Esq.
Email: Weillj@ballardspahr.com
GLP Capital, L.P.
c/o Gaming and Leisure Properties, Inc.
845 Berkshire Blvd., Suite 200
Wyomissing, Pennsylvania 19610
Attention: Brandon Moore, Esq.
Facsimile: (610) 401-2901
And with copy to
(which shall
not constitute notice):
Goodwin Procter LLP
The New York Times Building
New York, New York 10018
Attention: Yoel Kranz, Esq.
Facsimile: (215) 355-333
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.
ARTICLE XXXVI
36.1 Transfer of Tenant’s Property and Operational Control of the Facilities. Upon the written request (an
“End of Term Gaming Asset Transfer Notice”) of Landlord either immediately prior to or in connection with the expiration or
earlier termination of the Term, or of Tenant in connection with a termination of this Master Lease that occurs (i) either on the
last date of the Initial Term or the last date of any Renewal Term, or (ii) in the event
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Landlord exercises its right to terminate this Master Lease or repossess the Leased Property in accordance with the terms of this
Master Lease and, provided that, in each of the foregoing clauses (i) or (ii), Tenant complies with the provisions of Section 36.3,
Tenant shall transfer (or cause to be transferred) upon the expiration of the Term, or as soon thereafter as Landlord shall request,
the business operations (which will include a two (2) year transition license for tradenames and trademarks used at the Facilities)
conducted by Tenant and its Subsidiaries at the Facilities (including, for the avoidance of doubt, all Tenant’s Property relating to
each of the Facilities) to a successor lessee or operator (or lessees or operators) of the Facilities (collectively, the “Successor
Tenant”) designated pursuant to Section 36.2 for consideration to be received by Tenant (or its Subsidiaries) from the Successor
Tenant in an amount equal to the fair market value of such business operations (which will include a two (2) year transition
license for tradenames and trademarks used at the Facilities) conducted at the Facilities and Tenant’s Property (including any
Tenant Capital Improvements not funded by Landlord in accordance with Section 10.3) (the “Gaming Assets FMV”) as
negotiated and agreed by Tenant and the Successor Tenant; provided, however, that in the event an End of Term Gaming Asset
Transfer Notice is delivered hereunder, then notwithstanding the expiration or earlier termination of the Term, until such time that
Tenant transfers the business operations (which will include a two (2) year transition license for tradenames and trademarks used
at the Facilities) conducted at the Facilities and Tenant’s Property to a Successor Tenant, Tenant shall (or shall cause its
Subsidiaries to) continue to (and Landlord shall permit Tenant to maintain possession of the Leased Property to the extent
necessary to) operate the Facilities in accordance with the applicable terms of this Master Lease and the course and manner in
which Tenant (or its Subsidiaries) has operated the Facilities prior to the end of the Term (including, but not limited to, the
payment of Rent hereunder). If Tenant and a potential Successor Tenant designated by Landlord cannot agree on the Gaming
Assets FMV within a reasonable time not to exceed thirty (30) days after receipt of an End of Term Gaming Asset Transfer
Notice hereunder, then such Gaming Assets FMV shall be determined, and Tenant’s transfer of Tenant’s Property to a Successor
Tenant in consideration for a payment in such amount shall be determined and transferred, in accordance with the provisions of
Section 36.2.
36.2 Determination of Successor Lessee and Gaming Assets FMV.
If not effected pursuant to Section 36.1, then the determination of the Gaming Assets FMV and the transfer of
Tenant’s Property to a Successor Tenant in consideration for the Gaming Assets FMV shall be effected by (i) first, determining in
accordance with Section 36.2(a) the rent that Landlord would be entitled to receive from Successor Tenant assuming a lease term
of ten (10) years (the “Successor Tenant Rent”) pursuant to a lease agreement containing substantially the same terms and
conditions of this Master Lease (other than, in the case of a new lease at the end of the final Renewal Term, the terms of this
Article XXXVI, which will not be included in such new lease), (ii) second, identifying and designating in accordance with the
terms of Section 36.2(b), a pool of qualified potential Successor Tenants (each, a “Qualified Successor Tenant”) prepared to
lease the Facilities at the Successor Tenant Rent and to bid for the business operations (which will include a two (2) year
transition license for tradenames and trademarks used at the Facilities) conducted at the Facilities and Tenant’s Property, and (iii)
third, in accordance with the terms of Section 36.2(c), determining the highest
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price a Qualified Successor Tenant would agree to pay for Tenant’s Property and setting such highest price as the Gaming Assets
FMV in exchange for which Tenant shall be required to transfer Tenant’s Property and Landlord will enter into a lease with such
Qualified Successor Tenant on substantially the same terms and conditions of this Master Lease (other than, in the case of a new
lease at the end of the final Renewal Term, the terms of this Article XXXVI, which will not be included in such new lease)
through the remaining term of this Master Lease (assuming that this Master Lease will not have terminated prior to its natural
expiration at the end of the final Renewal Term) or ten (10) years, whichever is greater for a rent calculated pursuant to Section
36.2(a) hereof. Notwithstanding anything in the contrary in this Article XXXVI, the transfer of Tenant’s Property will be
conditioned upon the approval of the applicable regulatory agencies of the transfer of the Gaming Licenses and any other gaming
assets to the Successor Tenant and/or the issuance of new gaming licenses as required by applicable Gaming Regulations and the
relevant regulatory agencies both with respect to operating and suitability criteria, as the case may be.
(a) Determining Successor Tenant Rent. Landlord and Tenant shall first attempt to agree on the amount of
Successor Tenant Rent that it will be assumed Landlord will be entitled to receive for a term of ten (10) years and pursuant to a
lease containing substantially the same terms and conditions of this Master Lease (other than, in the case of a new lease at the end
of the final Renewal Term, the terms of this Article XXXVI, which will not be included in such new lease). If Landlord and
Tenant cannot agree on the Successor Tenant Rent amount within a reasonable time not to exceed sixty (60) days after receipt of
an End of Term Gaming Asset Transfer Notice hereunder, then the Successor Tenant Rent shall be set as follows:
(i) for the period preceding the last day of the calendar month in which the thirty-fifth (35 ) anniversary of the
Commencement Date occurs, then the annual Successor Tenant Rent shall be an amount equal to the annual Rent that
would have accrued under the terms of this Master Lease for such period (assuming the Master Lease will have not been
terminated prior to its natural expiration); and
th
(ii) for the period following the last day of the calendar month in which the thirty-fifth (35 ) anniversary of the
Commencement Date occurs, then the Successor Tenant Rent shall be calculated in the same manner as Rent is calculated
under this Master Lease, except that the annual Base Rent component of Base Rent shall be the product of (a) the
replacement cost of the Facilities as of the date of expiration of this Master Lease as determined by an Expert pursuant to
Section 34.1(c)(ii), and (b) an appropriate per annum yield for leases between owners and operators of Gaming Facilities
at the time in question as determined by an Expert pursuant to Section 34.1(c)(ii).
th
(b) Designating Potential Successor Tenants. Landlord will select one and Tenant will select three (for a total of
up to four) potential Qualified Successor Tenants prepared to lease the Facilities for the Successor Tenant Rent, each of whom
must meet the criteria established for a Discretionary Transferee (and none of whom may be Tenant or an Affiliate of Tenant (it
being understood and agreed that there shall be no restriction on Landlord or any
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Affiliate of Landlord from being a potential Qualified Successor Tenant), except in the case of termination of the Master Lease on
th
the last day of the calendar month in which the thirty-fifth (35 ) anniversary of the Commencement Date occurs). Landlord and
Tenant must designate their proposed Qualified Successor Tenants within ninety (90) days after receipt of an End of Term
Gaming Asset Transfer Notice hereunder. In the event that Landlord or Tenant fails to designate such party’s allotted number of
potential Qualified Successor Tenants, the other party may designate additional potential Qualified Successor Tenants such that
the total number of potential Qualified Successor Tenants does not exceed four; provided that, in the event the total number of
potential Qualified Successor Tenants is less than four, the transfer process will still proceed as set forth in Section 36.2(c) below.
(c) Determining Gaming Assets FMV. Tenant will have a three (3) month period to negotiate an acceptable sales
price for Tenant’s Property with one of the Qualified Successor Tenants, which three (3) month period will commence
immediately upon the conclusion of the steps set forth above in Section 36.2(b). If Tenant does not reach an agreement prior to
the end of such three (3) month period, Landlord shall conduct an auction for Tenant’s Property among the four potential
successor lessees, and Tenant will be required to transfer Tenant’s Property to the highest bidder.
36.3 Operation Transfer. Upon designation of a Successor Tenant (pursuant to either Section 36.1 or 36.2, as
the case may be), Tenant shall reasonably cooperate and take all actions reasonably necessary (including providing all reasonable
assistance to Successor Tenant) to effectuate the transfer of operational control of the Facilities to Successor Tenant in an orderly
manner so as to minimize to the maximum extent possible any disruption to the continued orderly operation of the Facilities for
its Primary Intended Use. Notwithstanding the expiration or earlier termination of the Term and anything to the contrary herein,
unless Landlord consents to the contrary, until such time that Tenant transfers Tenant’s Property and operational control of the
Facilities to a Successor Tenant in accordance with the provisions of this Article XXXVI, Tenant shall (or shall cause its
Subsidiaries to) continue to (and Landlord shall permit Tenant to maintain possession of the Leased Property to the extent
necessary to) operate the Facilities in accordance with the applicable terms of this Master Lease and the course and manner in
which Tenant (or its Subsidiaries) has operated the Facilities prior to the end of the Term (including, but not limited to, the
payment of Rent hereunder). Concurrently with the transfer of Tenant’s Property to Successor Tenant, Landlord and Successor
Tenant shall execute a new master lease in accordance with the terms as set forth in the final clause of the first sentence of
Section 36.2 hereof.
ARTICLE XXXVII
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
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require Tenant to reimburse, pay or indemnify against Landlord’s attorneys’ fees, Tenant shall pay, as 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
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
39.1 Anti-Terrorism Representations. Tenant hereby represents and warrants that neither Tenant, nor, to the
knowledge of Tenant, any persons or entities holding any legal or beneficial interest whatsoever in Tenant, are (i) the target 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) designated by the President or OFAC pursuant to 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”). Tenant hereby represents and warrants to Landlord that no funds
tendered to Landlord by Tenant under the terms of this Master Lease are or will be directly or indirectly derived from activities
that may contravene U.S. federal, state or international laws and regulations, including anti-money laundering laws. If the
foregoing representations are untrue at any time during the Term and Landlord suffers actual damages as a result thereof, an
Event of Default will be deemed to have occurred, without the necessity of notice to Tenant.
Tenant will not 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 use or occupancy of the Leased Property.
A breach of the representations contained in this Section 39.1 by Tenant as a result of which Landlord suffers actual damages
shall constitute a material breach of this Master Lease and shall entitle Landlord to any and all remedies available hereunder, or at
law or in equity.
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ARTICLE XL
40.1 GLP 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 Agreement 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) 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) furnish or render any services to the subtenant, assignee or manager or manage or operate the Leased Property so
subleased, assigned or managed; (iii) sublet, assign or enter into a management arrangement for the Leased Property to any
Person (other than a “taxable REIT subsidiary” (within the meaning of Section 856(l) of the Code) of GLP) in which Tenant,
Landlord or GLP owns an interest, directly or indirectly (by applying constructive ownership rules set forth in Section 856(d)(5)
of the Code); or (iv) 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 Landlord’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 GLP’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
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reasonable action as may be requested by Landlord from time to time in order to 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
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.
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 TO THE CREATION OF THE
LEASEHOLD ESTATE AND ALL REMEDIES SET FORTH IN ARTICLE XVI RELATING TO RECOVERY OF
POSSESSION OF THE LEASED
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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 41.6 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 Amendment and Restatement; Entire Agreement. This Master Lease and the Exhibits and Schedules
attached hereto and the Development Agreement constitute the entire and final agreement of the parties with respect to the
subject matter hereof. This Master Lease 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 and the Development Agreement.
41.8 Headings. 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.
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. In addition, Landlord agrees to, at Tenant’s sole cost and expense, reasonably cooperate
with all applicable gaming authorities in connection with the administration of their regulatory jurisdiction over Tenant’s Parent,
Tenant and its Subsidiaries, including the provision of such documents and other information as may be requested by such
gaming authorities relating to Tenant or any of its Subsidiaries or to this Master Lease and which are within Landlord’s
reasonable control to obtain and provide.
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, each of Tenant,
Landlord, and each of Tenant’s or Landlord’s 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 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
Regulations and Liquor Laws and only to the extent that required approvals (including prior approvals) are obtained from the
requisite governmental authorities.
(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, 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 State Specific Provisions.
(a) Maryland - Subordination Landlord’s Lien. Upon Tenant’s request, Landlord will subordinate any right of
distress, distraint, or other statutory lien it may have with
ACTIVE/119970514.22
108
respect to Tenant’s personal property located at Perryville Facility to the perfected security interest of Tenant’s lender in Tenant’s
personal property located at the Perryville Facility. The form and substance of such subordination to be executed by Landlord
shall be reasonably acceptable to Landlord.
(b) Nevada. Pursuant to Section 108.234 of the Nevada Revised Statutes (as amended or supplemented from
time to time, “NRS”), to the extent the Leased Property is located in Nevada, Landlord hereby informs Tenant that Tenant must
comply with the requirements of NRS § 108.2403 and NRS § 108.2407. Tenant shall (a) take all actions necessary under laws of
the State of Nevada to ensure that no liens encumbering Landlord’s interest in the Leased Property located in Nevada arise as a
result of Capital Improvements by Tenant, which actions shall include, without limitation, the recording of a notice of posted
security in the Office of the County Recorder of Clark County, Nevada, in accordance with NRS § 108.2403(1)(a), and (b) either
(i) establish a construction disbursement account pursuant to NRS § 108.2403(1)(b)(1), or (ii) furnish and record, in accordance
with NRS § 108.2403(1)(b)(2), a surety bond for the prime contract for such Capital Improvements at such Leased Property that
meets the requirements of NRS § 108.2415. Tenant shall notify Landlord of the name and address of Tenant’s prime contractor
who will be performing such Capital Improvements as soon as it is known. Tenant shall notify Landlord immediately upon the
signing of any contract with the prime contractor for such Capital Improvements or other construction, alteration or repair of any
portion of such Leased Property or any improvements to such Leased Property. Tenant may not enter such Leased Property to
begin any alteration or other work in such Leased Property until Tenant has delivered evidence satisfactory to Landlord that
Tenant has complied with the terms of this Section 41.14. Failure by Tenant to comply with the terms of this Section 41.14 shall
permit Landlord to declare an Event of Default. Further, Landlord shall have the right to post and maintain any notices of non-
responsibility.
41.15 Multiple Parties; Joint and Several Liability. In the event that at any time during the Term of this
Master Lease, Landlord shall consist of more than one Person, (i) all of the duties, obligations, promises, covenants and
agreements contained in this Master Lease to be performed by Landlord shall be the joint and several obligation of all Persons
defined as Landlord, (ii) all of the representations, warranties, covenants, obligations, conditions, agreements and other terms
contained in this Master Lease shall be applicable to, and binding upon and enforceable against, any one or more Persons defined
as Landlord, (iii) a default by one such Person defined as Tenant under this Master Lease shall constitute a default by all such
Persons defined as Tenant under this Master Lease, and (iv) such Persons may appoint one Person to be the contact for those
matters hereunder where the consent of Landlord is required, which Person shall be authorized to give such consents in a manner
that will be binding upon Landlord. In the event that at any time during the Term of this Master Lease, Tenant shall consist of
more than one Person, (i) all duties, obligations, promises, covenants and agreements contained in this Master Lease to be
performed by Tenant shall be the joint and several obligation of all Persons defined as Tenant, (ii) all of the representations,
warranties, covenants, obligations, conditions, agreements and other terms contained in this Master Lease shall be applicable to,
and binding upon and enforceable against, any one or more Persons defined as Tenant, (iii) a default by one such Person defined
as Tenant under this Master Lease shall
ACTIVE/119970514.22
109
constitute a default by all such Persons defined as Tenant under this Master Lease, and (iv) such Persons may appoint one Person
to be the contact for those matters hereunder where the consent of Tenant is required, which Person shall be authorized to give
such consents in a manner that will be binding upon Tenant.
SIGNATURES ON FOLLOWING PAGE
ACTIVE/119970514.22
110
IN WITNESS WHEREOF, this Master Lease has been executed by Landlord and Tenant as of the date first
written above.
LANDLORD:
GLP CAPITAL, L.P.
By: Gaming and Leisure Properties, Inc., its general partner
By: /s/ Brandon J. Moore
Name: Brandon J. Moore
Title: Executive Vice President, General Counsel & Secretary
PA MEADOWS, LLC
a Delaware limited liability company
By: /s/ Brandon J. Moore
Name: Brandon J. Moore
Title: Vice President & Secretary
CCR PENNSYLVANIA RACING, LLC
a Pennsylvania limited liability company
By: /s/ Brandon J. Moore
Name: Brandon J. Moore
Title: Vice President & Secretary
ACTIVE/119970514.22
S-1
TENANT:
PENN TENANT, LLC
By: /s/Chris Rogers
Name: Chris Rogers
Title: Authorized signatory by and on behalf of PENN Entertainment, Inc., its sole memeber
ACTIVE/119970514.22
S-2
EXHIBIT A
LIST OF FACILITIES
Facility Name
Facility Address
Hollywood Casino Perryville
Hollywood Casino at the Meadows
Hollywood Casino Aurora
Hollywood Casino Joliet
Hollywood Casino Columbus
Hollywood Casino Toledo
M Resort Spa Casino (excluding Simon Ground Leased
Property)
Use
Casino and Gaming
Perryville, Maryland
North Strathbane, Pennsylvania
1 W. New York Street, Aurora, IL
777 Hollywood Blvd, Joliet, IL
Dockside Gaming Barge-Based
Facility
Dockside Gaming Barge-Based
Facility
Land-based Gaming
200 Georgesville Road, Columbus, OH
1968 Miami Street, Toledo, OH
Land-based Gaming
12300 Las Vegas Blvd., South Henderson, NV Land-based gaming
ACTIVE/119970514.22
A-1
FIFTH AMENDMENT TO MASTER LEASE
THIS FIFTH AMENDMENT TO MASTER LEASE (this “Amendment”) is being entered into on this 14 day of
January, 2022 (the “Effective Date”), by and between Gold Merger Sub, LLC (together with its permitted successors and assigns,
“Landlord”) and Pinnacle MLS, LLC (together with its permitted successors and assigns, “Tenant”), and shall amend that
certain Master Lease, dated April 28, 2016, as amended by that certain First Amendment to Master Lease, dated August 29, 2016,
that certain Second Amendment to Master Lease, dated October 25, 2016, that certain Third Amendment to Master Lease, dated
March 24, 2017, and that certain Fourth Amendment to Master Lease, dated October 15, 2018 (collectively with the foregoing,
the “Master Lease”), by and among Landlord and Tenant, pursuant to which Tenant leases certain Leased Property, as further
defined in the Master Lease. Capitalized terms used herein and not otherwise defined herein shall have the meaning ascribed to
them in the Master Lease.
th
BACKGROUND:
WHEREAS, Landlord and Tenant each desire to amend the Master Lease as more fully described herein.
NOW, THEREFORE, in consideration of the provisions set forth in the Master Lease as amended by this Amendment,
including, but not limited to, the mutual representations, warranties, covenants and agreements contained therein and herein, and
for other good and valuable consideration, the receipt and sufficiency of which are hereby respectively acknowledged, and
subject to the terms and conditions thereof and hereof, the parties, intending to be legally bound, hereby agree that the Master
Lease shall be amended as follows:
AMENDMENT TO ARTICLE II OF THE MASTER LEASE
Article I
1.1
following language:
The definition of Net Revenue in the Master Lease is hereby amended and restated in its entirety with the
“Net Revenue: The sum of, without duplication, (i) the amount received by Tenant (and its Subsidiaries and its
subtenants) from patrons at any Facility for gaming, less refunds and free promotional play provided to the customers and
invitees of Tenant (and its Subsidiaries and subtenants) pursuant to a rewards, marketing, and/or frequent users program,
and less amounts returned to patrons through winnings at any Facility (the amounts in this clause (i), “Gaming
Revenues”); and (ii) the gross receipts of Tenant (and its Subsidiaries and subtenants) for all goods and merchandise sold,
the charges for all services performed, or any other revenues generated by Tenant (and its Subsidiaries and subtenants) in,
at, or from the Leased Property for cash, credit, or otherwise (without reserve or deduction for uncollected amounts), but
excluding any Gaming Revenues (the amounts in this clause (ii), “Retail Sales”); less (iii) the retail value of
accommodations, food and beverage, and other services furnished without charge to guests of Tenant (and its Subsidiaries
and subtenants) at any Facility (the amounts in this clause (iii),
W/3809628v11
“Promotional Allowance”). For the avoidance of doubt, gaming taxes and casino operating expenses (such as salaries,
income taxes, employment taxes, supplies, equipment, cost of goods and inventory, rent, office overhead, marketing and
advertising and other general administrative costs) will not be deducted in arriving at Net Revenue. Net Revenue will be
calculated on an accrual basis for these purposes, as required under GAAP. For the absence of doubt, if Gaming
Revenues, Retail Sales or Promotional Allowances of a Subsidiary or subtenant, as applicable, are taken into account for
purposes of calculating Net Revenue, any rent received by Tenant from such Subsidiary or subtenant, as applicable,
pursuant to any sublease with such Subsidiary or subtenant, as applicable, shall not also be taken into account for
purposes of calculating Net Revenues. Notwithstanding the foregoing, (i) with respect to any Specified Sublease, Net
Revenue shall not include Gaming Revenues or Retail Sales from the subtenants under such subleases and shall include
the rent received by Tenant or its subsidiaries thereunder; and (ii) with respect to any Excluded Sublease, Net Revenue
shall not include Retail Sales from the subtenants under such sublease. Net Revenue shall not include online or internet-
based revenue (including online gaming or internet-based sports-related gaming, “iGaming”), except to the extent that the
online or internet-based revenue is derived from gaming, wagering or related activity that occurs while the patron is
physically located at, in or on Leased Property (“Onsite iGaming”). For the avoidance of doubt, and with respect to
Onsite iGaming, Net Revenue shall (i) not include any revenues that Tenant, Tenant’s Parent or any of their Affiliates
receives from market access agreements or “skin” agreements for iGaming between Tenant, Tenant’s Parent or any of
their Affiliates and any third party, and (ii) include all income, whether reported in net revenue or any other income
statement line item of Tenant, Tenant’s Parent or any of their Affiliates. Tenant shall be responsible for any incremental
costs associated with tracking Onsite iGaming, including by way of geo-location related technology or otherwise
(collectively, “Online Tracking”). Notwithstanding the foregoing, Tenant shall not be required to track Onsite Gaming
until such time as Online Tracking is installed by Tenant at the Leased Property, which shall be as soon as reasonably
practicable but no later than six months after the launch of Onsite iGaming. In addition, Net Revenue attributed to Onsite
iGaming at each Leased Property shall not be less than $0 on an annual basis. The allocation of iGaming Promotional
Allowances for purposes of determining Net Revenue shall be limited to the same percentage as Onsite iGaming revenue
for such applicable Leased Property of total iGaming revenue; provided that iGaming Promotional Allowances shall not
exceed fifteen percent (15%) of Onsite iGaming Net Revenue.”
1.2
following language:
The definition of Adjusted Revenue in the Master Lease is hereby amended and restated in its entirety with the
“Adjusted Revenue: For any Test Period, Net Revenue (i) minus expenses other than Specified Expenses and (ii) plus
Specified Proceeds, if any; provided, however, that for purposes of calculating Adjusted Revenue, Net Revenue shall not
include Gaming Revenues, Retail Sales or Promotional Allowances of any subtenants of Tenant or any deemed payments
under subleases of this Master Lease, licenses or other access rights
2
from Tenant to its operating subsidiaries. Adjusted Revenue 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 since the
beginning of any Test Period of Tenant as if each such increase or decrease had been effected on the first day of such Test
Period. Notwithstanding the foregoing, with respect to the deduction of expenses related to or arising from Onsite
iGaming under subsection (i) above, only Eligible iGaming Expenses may be deducted.”
1.3
language:
The definition of Escalation in the Master Lease is hereby amended and restated in its entirety with the following
“Escalation: For any Lease Year (other than the first Lease Year), the lesser of (a) an amount equal to the excess of (i) the
Escalated Building Base Rent for such Lease Year over (ii) the Building Base Rent for the immediately preceding Lease
Year, and (b) an amount (but not less than zero) that adding such amount to the Rent for the immediately preceding Lease
Year will have yielded an Adjusted Revenue to Rent Ratio for such preceding Lease Year of 1.8:1, provided that the term
“Adjusted Revenue” as used in this definition shall mean the Adjusted Revenue, minus the portion of the Adjusted
Revenue derived from the Plainridge Park Facility, and the term “Rent” as used in this definition shall mean the Rent,
minus Thirty Eight Million, Nine Hundred Thousand Dollars ($38,900,000).”
1.4
The following definition of Eligible iGaming Expenses is hereby inserted into Article II of the Master Lease:
“Eligible iGaming Expenses: shall mean any expenses incurred directly for Onsite iGaming, and shall not include, (i) any
expense that is associated with the development of the sports betting or iGaming applications and related products
(including, if applicable and for the sake of clarity, the amortization of any capitalized expenses), (ii) any expense
associated with the acquisition of Barstool or the initial licensing of sports betting or iGaming, (iii) start-up costs
associated with the introduction of sports betting or iGaming, (iv) research and development-type of expenses, and (v)
any other indirect expenses related to sports betting or iGaming.”
AMENDMENT TO ARTICLE VII OF THE MASTER LEASE
Article II
2.1 Section 7.2(d)(ii) of the Master Lease is hereby amended and restated in its entirety with the following language:
“(ii) when calculating the Percentage Rent due, the Net Revenue for each and every such Facility whose operations have
permanently ceased shall in the year of such cessation, and for each year thereafter, be equal to the Net Revenue for such Facility
for the calendar year immediate prior to the year in which the Facility permanently ceased its operations.”
3
2.2 The second to last grammatical sentence of Section 7.3(a) of the Master Lease is hereby amended and restated in its
entirety with the following language: “Should Landlord notify Tenant that it does not intend to pursue such Greenfield Project (or
should Landlord decline to notify Tenant of its affirmative response within such thirty (30) day period), or if the parties despite
good faith efforts on both sides fail to reach agreement on the terms under which such opportunity would be jointly pursued
under this Master Lease and such new Greenfield Project would become a portion of the Leased Property hereunder, in any event,
within forty-five (45) days after Landlord’s notice to Tenant of Landlord’s intent to participate in such Greenfield Project, then (a)
for each and every Affected Facility the Net Revenue when used in the calculation of Percentage Rent will thereafter subject to a
floor, which floor shall be based on the Net Revenue for such Affected Facility for the calendar year immediately prior to the
year in which the Greenfield Project is first opened to the public (the “Greenfield Floor”), (b) thereafter when calculating
Percentage Rent, the Net Revenue for such Affected Facility shall be equal to the greater of (i) the actual Net Revenue derived
from such Affected Facility for the applicable calculation period, and (ii) the Greenfield Floor, and (c) for the avoidance of doubt,
Percentage Rent shall be subject to normal periodic adjustments each Percentage Rent Reset Year and in accordance with Section
14.6; provided that the Net Revenue for the Affected Facility may not be reduced below the Greenfield Floor.”
2.3 Section 7.3(e) of the Master Lease is hereby amended and restated in its entirety with the following language:
“Tenant’s Rights to Acquire or Operate Existing Facilities. In the event Tenant or its Affiliate acquires or operates any existing
competing Gaming Facility within the Restricted Area (a “Competing Facility”), (a) for each and every Affected Facility the Net
Revenue derived from such Affected Facility when used in the calculation of Percentage Rent will thereafter be subject to a floor,
which floor shall be based on the Net Revenue for such Affected Facility for the calendar year immediately prior to the year in
which the Competing Facility is acquired or first operated by Tenant or its Affiliate (the “Competing Facility Floor”), (b)
thereafter when calculating Percentage Rent, the Net Revenue for such Affected Facility shall be equal to the greater of (i) the
actual Net Revenue derived from such Affected Facility for the applicable calculation period, and (ii) the Competing Facility
Floor, and (c) for the avoidance of doubt, Percentage Rent shall be subject to normal periodic adjustments each Percentage Rent
Reset Year and in accordance with Section 14.6; provided that the Net Revenue for the Affected Facility may not be reduced
below the Competing Facility Floor.”
Article III
AMENDMENT TO ARTICLE XIV TO THE MASTER LEASE
3.1 Section 14.6 of the Master Lease is hereby amended and restated in its entirety with the following language:
“Section 14.6 Termination of Master Lease; Abatement of Rent. In the event this Master Lease is terminated as to
an affected Leased Property pursuant to Section 8.2 (in respect of Tenant being in jeopardy of losing a Gaming License or
Landlord being in jeopardy of failing to comply with a regulatory requirement material to the continued operation of a Facility),
Section 14.5 (in the event Facility Mortgagee elects to apply insurance proceeds to pay down
4
indebtedness secured by a Facility Mortgage following the damage to or destruction of all or any portion of the Leased Property
or such prepayment is required under the related financing document) or Section 15.5 (as provided therein) (such termination or
cessation, a “Leased Property Rent Adjustment Event”), then:
(i)
(ii)
(iii)
the Building Base Rent due hereunder from and after the effective date of any such Leased Property Rent Adjustment
Event shall be reduced by an amount determined by multiplying (A) a fraction, (x) the numerator of which shall be the
fair market value for the affected Leased Property immediately prior to the effective date of the Leased Property Rent
Adjustment Event and (y) the denominator of which shall be the fair market value for all of the Leased Property then
subject to the terms of this Master Lease, including the affected Leased Property immediately prior to the effective
date of such Leased Property Rent Adjustment Event (in each case as determined in good faith by the parties or if the
parties cannot agree, by an Expert pursuant to Section 34.1 of Master Lease), by (B) the Building Base Rent payable
under this Master Lease immediately prior to the effective date of the Leased Property Rent Adjustment Event as to
the affected Leased Property;
the Land Base Rent due hereunder from and after the effective date of any such Leased Property Rent Adjustment
Event shall be reduced by an amount determined by multiplying (A) a fraction, (x) the numerator of which shall be the
fair market value for the affected Leased Property immediately prior to the effective date of the Leased Property Rent
Adjustment Event and (y) the denominator of which shall be the fair market value for all of the Leased Property then
subject to the terms of this Master Lease, including the affected Leased Property immediately prior to the effective
date of such Leased Property Rent Adjustment Event (in each case as determined in good faith by the parties or if the
parties cannot agree, by an Expert pursuant to Section 34.1 of this Master Lease), by (B) the Land Base Rent payable
under this Master Lease immediately prior to the effective date of the Leased Property Rent Adjustment Event as to
the affected Leased Property;
the Percentage Rent due from and after the effective date of any such Leased Property Rent Adjustment Event with
respect to a Leased Property (other than the Plainridge Park Facility), shall be reduced by an amount determined by
multiplying (A) a fraction, (x) the numerator of which shall be the fair market value for the affected Leased Property
immediately prior to the effective date of the Leased Property Rent Adjustment Event and (y) the denominator of
which shall be the fair market value for all of the Leased Property (other than the Plainridge Park Facility) then
subject to the terms of this Master Lease, including the affected Leased Property immediately prior to the effective
date of such Leased Property Rent Adjustment Event (in each case as determined in good faith by the parties or if the
parties cannot agree, by an Expert pursuant to Section 34.1 of this Master Lease), by (B) the Percentage Rent payable
immediately prior to the effective date of the Leased Property Rent Adjustment Event as to the affected Leased
Property;
5
(iv)
the amount set forth in clause (b) of the second sentence of the definition of Percentage Rent shall be modified from
and after the effective date of any such Leased Property Rent Adjustment Event with respect to a Leased Property
(other than the Plainridge Park Facility) by reducing the amount set forth in clause (b) of the second sentence of the
definition of Percentage Rent by an amount determined by multiplying (A) a fraction, (x) the numerator of which is
the fair market value for the affected Leased Property immediately prior to the effective date of the Leased Property
Rent Adjustment Event and (y) the denominator of which is the fair market value for all of the Leased Property (other
than the Plainridge Park Facility) then subject to the terms of this Master Lease, including the affected Leased
Property immediately prior to the effective date of such Leased Property Rent Adjustment Event (in each case as
determined in good faith by the parties or if the parties cannot agree, by an Expert pursuant to Section 34.1 of this
Master Lease), by (B) the amount set forth in clause (b) of the second sentence of the definition of Percentage Rent
immediately prior to the effective date of the Leased Property Rent Adjustment Event as to the affected Leased
Property;
(v) Landlord shall retain any claim which Landlord may have against Tenant for failure to insure such Leased Property as
(vi)
required by Article XIII; and
In the event the affected Leased Property triggering the Leased Property Rent Adjustment Date is the Plainridge Park
Facility, then the Base Rent due and after the effective date of any such Leased Property Rent Adjustment Event shall
be reduced by Twenty-Five Million Dollars ($25,000,000).”
Article IV
AUTHORITY TO ENTER INTO AMENDMENT
Each party represents and warrants to the other that: (i) this Amendment 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 Amendment and the
Master Lease, as amended hereby, within the State(s) where any portion of the Leased Property is located, and (iii) neither this
Amendment, the Master Lease, as amended hereby, nor any other document executed or to be executed in connection herewith
violates the terms of any other agreement of such party.
Article V
MISCELLANEOUS
5.1 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 Amendment, 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
Amendment, 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.
6
5.2 Costs and Expenses; Fees. Each party shall be responsible for and bear all of its own expenses incurred in
connection with pursuing or consummating this Amendment and the transactions contemplated by this Amendment, including,
but not limited to, fees and expenses, legal counsel, accountants, and other facilitators and advisors.
5.3 Choice of Law and Forum Selection Clause. This Amendment shall be construed and interpreted, and the rights of
the parties shall be determined, in accordance with the substantive Laws of the State of New York without regard to the conflict
of law principles thereof or of any other jurisdiction.
5.4 Counterparts; Facsimile Signatures. This Amendment may be executed in two or more counterparts, each of
which shall be deemed an original, but all of which together shall constitute one and the same instrument. In proving this
Amendment, it shall not be necessary to produce or account for more than one such counterpart signed by the party against whom
enforcement is sought. Any counterpart may be executed by facsimile signature and such facsimile signature shall be deemed an
original.
5.5 No Further Modification. Except as modified hereby, the Master Lease remains in full force and effect.
[Signature Page to Follow]
7
IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by each of the undersigned as of the
date first above written.
LANDLORD:
GOLD MERGER SUB, LLC
By: /s/ Brandon J. Moore_______
Name: Brandon J. Moore
Title: VP & Secretary
TENANT:
PINNACLE MLS, LLC
By: Pinnacle Entertainment, Inc.
its sole member
By: /s/ Harper Ko _____________
Name: Harper Ko
Title: Secretary
W/3809628v11
Subsidiaries of Gaming and Leisure Properties, Inc. (a Pennsylvania corporation)
Name of Subsidiary
CCR PA Racing, LLC
GLP Capital, L.P.
GLP Financing I, LLC
GLP Financing II, Inc.
Gold Merger Sub, LLC
Morgantown Real Property, LLC
PA Meadows, LLC
WTA II, LLC
Exhibit 21
State or Other
Jurisdiction of
Incorporation
Pennsylvania
Pennsylvania
Delaware
Delaware
Delaware
Delaware
Delaware
Delaware
Exhibit 22.1
List of Subsidiary Issuers of Guaranteed Securities
The following subsidiaries of Gaming and Leisure Properties, Inc. (the “Company”) were, as of December 31, 2021, issuers of
the (i) $500 million 5.375% senior unsecured notes due November 2023, (ii) $400 million 3.35% senior unsecured notes due
September 2024, (iii) $850 million 5.25% senior unsecured notes due June 2025, (iv) $975 million 5.375% senior unsecured
notes due April 2026, (v) $500 million 5.75% senior unsecured notes due June 2028, (vi) $750 million 5.30% senior unsecured
notes due January 2029, (vii) $700 million 4.00% senior unsecured notes due January 2030, (viii) $700 million 4.00% senior
unsecured notes due January 2031, and (ix) $800 million 3.25% senior unsecured notes due January 2032, each guaranteed by the
Company:
Entity
GLP Capital, L.P.
GLP Financing II, Inc.
Jurisdiction of Incorporation or Formation
Pennsylvania
Delaware
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the incorporation by reference in the following Registration Statements of our reports dated February 23, 2023, relating to the financial
statements of Gaming and Leisure Properties, Inc. and the effectiveness of Gaming and Leisure Properties, Inc.'s internal control over financial reporting
appearing in this Annual Report on Form 10-K for the year ended December 31, 2022.
Exhibit 23
Registration Statement No. 333-266814 on Form S-3
Registration Statement No. 333-192017 on Form S-8
Registration Statement No. 333-249523 on Form S-8
/s/ DELOITTE & TOUCHE LLP
New York, New York
February 23, 2023
CERTIFICATION PURSUANT TO RULE 13a-14(a) OR 15d-14(a) OF THE SECURITIES EXCHANGE ACT OF 1934
Exhibit 31.1
I, Peter M. Carlino, certify that:
1. I have reviewed this annual report on Form 10-K of Gaming and Leisure Properties, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. I am responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e))
and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under my
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to me by others within
those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under my
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes
in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most
recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially
affect, the registrant’s internal control over financial reporting; and
5. I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit
committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal
control over financial reporting.
Date:
February 23, 2023
/s/ Peter M. Carlino
Name: Peter M. Carlino
Chief Executive Officer
CERTIFICATION PURSUANT TO RULE 13a-14(a) OR 15d-14(a) OF THE SECURITIES EXCHANGE ACT OF 1934
Exhibit 31.1
I, Desiree A. Burke, certify that:
1. I have reviewed this annual report on Form 10-K of Gaming and Leisure Properties, Inc.;
2. Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the
statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report;
3. Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the
financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report;
4. I am responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e))
and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have:
(a) Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under my
supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to me by others within
those entities, particularly during the period in which this report is being prepared;
(b) Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under my
supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes
in accordance with generally accepted accounting principles;
(c) Evaluated the effectiveness of the registrant’s disclosure controls and procedures and presented in this report our conclusions about the
effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and
(d) Disclosed in this report any change in the registrant’s internal control over financial reporting that occurred during the registrant’s most
recent fiscal quarter (the registrant's fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially
affect, the registrant’s internal control over financial reporting; and
5. I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrant’s auditors and the audit
committee of the registrant’s board of directors (or persons performing the equivalent functions):
(a) All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the registrant’s ability to record, process, summarize and report financial information; and
(b) Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrant’s internal
control over financial reporting.
Date:
February 23, 2023
/s/ Desiree A. Burke
Name: Desiree A. Burke
Chief Financial Officer and Principal Financial Officer
CERTIFICATION PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
18 U.S.C. SECTION 1350
Exhibit 32.1
In connection with the annual report of Gaming and Leisure Properties, Inc. (the “Company”) on Form 10-K for the year ended December 31,
2022, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Peter M. Carlino, Chief Executive Officer of the
Company, certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that, to my knowledge:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the
Company.
/s/ Peter M. Carlino
Peter M. Carlino
Chief Executive Officer
Date: February 23, 2023
CERTIFICATION PURSUANT TO
SECTION 906 OF THE SARBANES-OXLEY ACT OF 2002
18 U.S.C. SECTION 1350
Exhibit 32.2
In connection with the annual report of Gaming and Leisure Properties, Inc. (the “Company”) on Form 10-K for the year ended December 31,
2022, as filed with the Securities and Exchange Commission on the date hereof (the “Report”), I, Desiree A. Burke, Chief Financial Officer of the
Company, certify, pursuant to Section 906 of the Sarbanes-Oxley Act of 2002, 18 U.S.C. Section 1350, that, to my knowledge:
1. The Report fully complies with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934, as amended; and
2. The information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the
Company.
/s/ Desiree A. Burke
Desiree A. Burke
Chief Financial Officer (Principal Financial Officer)
Date: February 23, 2023