Common use of Adjustment of the Performance Test Clause in Contracts

Adjustment of the Performance Test. (1) The Parties acknowledge and agree that the Budget Test and/or the Market Test shall each be equitably adjusted in the event that Manager’s ability to satisfy the Performance Test is adversely affected by (i) any Force Majeure that had an impact on EBITDA for any of the Combined Properties after giving effect to the proceeds received from any applicable business interruption insurance or award or other compensation payable in connection therewith; (ii) an Owner Event of Default under this Agreement, by Station GVR Acquisition LLC, a Nevada limited liability company, or any property owner thereunder under the GVR Management Agreement or by Station Casinos LLC or any property owner thereunder, under the Propco Management Agreement that has an adverse impact on EBITDA for any of the Combined Properties; (iii) disapproval by Owner of an Annual Plan and Operating Budget, or any line item thereof, or any proposed Discretionary Amendment, or any line item thereof, or failure or delay by Owner in providing funds requested by Manager (including as a result of any delay caused by submission of any Dispute to arbitration or the Industry Consultant pursuant to Section 17.16 hereof) or a comparable event occurs with respect to the Propco Management Agreement and/or the GVR Management Agreement that has an adverse impact on EBITDA for any of the Combined Properties; or (iv) with respect to the Market Test only, Capital Improvements and Replacements with respect to any Combined Property; provided that with respect to (iii) and (iv) as they relate to a Managed Property (A) Manager has provided written notice to Owner prior to the commencement of such Capital Improvements and Replacements that such Capital Improvements and Replacements will have an adverse impact on EBITDA, (B) such Capital Improvements and Replacements are nevertheless approved by Owner as part of the Approved Annual Plan and Operating Budget or any Discretionary Amendment and (C) such Capital Improvements and Replacements in fact have an adverse impact on EBITDA; provided that, with respect to (iii) and (iv) as they relate to any other property under the Propco Management Agreement and/or the GVR Management Agreement, Manager shall provide written notice to Owner of such Capital Improvements and Replacements promptly after Manager learns of the same. In the event of any of the foregoing, following the delivery of the audited Year End Statements for the applicable Measurement Year(s), Manager shall deliver written notice to Owner requesting an adjustment to the Performance Test and setting forth the basis for such adjustment whereupon the Parties shall meet (if necessary) to determine, in good faith, the appropriate equitable adjustment to the Performance Test. If the Parties fail to agree on such equitable adjustment, either Party may submit the matter to arbitration in accordance with Section 17.16 hereof. (2) In the event an EBITDA Percentage Adjustment Event occurs, (i) the EBITDA Percentage shall be recalculated by the Parties when a corresponding twelve (12) month period of financial reporting is available for the Combined Properties and the Performance Competitive Set; and (ii) until such time as the data necessary for the recalculation of the EBITDA Percentage is available, the Parties will endeavor to determine the appropriate equitable adjustment of the EBITDA Percentage for such interim period. In the event of any of the foregoing, following the delivery of the audited Year End Statements for the applicable Measurement Year(s), Manager shall deliver written notice to Owner requesting an adjustment to the Performance Test and setting forth the basis for such adjustment whereupon the Parties shall meet (if necessary) to determine, in good faith, the appropriate equitable adjustment to the Performance Test. If the Parties fail to agree on such equitable adjustment or on a new EBITDA Percentage (or the equitable adjustment during any interim period), either Party may submit the matter to arbitration in accordance with Section 17.16 hereof.

Adjustment of the Performance Test. (1) The Parties acknowledge and agree that the Budget Test and/or the Market Test shall each be equitably adjusted in the event that Manager’s ability to satisfy the Performance Test is adversely affected by (i) any Force Majeure that had an impact on EBITDA for any of the Combined Properties after giving effect to the proceeds received from any applicable business interruption insurance or award or other compensation payable in connection therewith; (ii) an Owner Event of Default under this Agreement, by Station GVR Acquisition Casinos LLC or any property owner thereunder under the Propco Management Agreement or by NP Opco LLC, a Nevada limited liability company, or any property owner thereunder under the GVR Management Agreement or by Station Casinos LLC or any property owner thereunder, under the Propco Opco Management Agreement that has an adverse impact on EBITDA for any of the Combined Properties; (iii) disapproval by Owner of an Annual Plan and Operating Budget, or any line item thereof, or any proposed Discretionary Amendment, or any line item thereof, or failure or delay by Owner in providing funds requested by Manager (including as a result of any delay caused by submission of any Dispute to arbitration or the Industry Consultant pursuant to Section 17.16 hereof) or a comparable event occurs with respect to the Propco Management Agreement and/or the GVR Opco Management Agreement that has an adverse impact on EBITDA for any of the Combined Properties; or (iv) with respect to the Market Test only, Capital Improvements and Replacements with respect to any Combined Property; provided that with respect to (iii) and (iv) as they relate to a Managed the Property (A) Manager has provided written notice to Owner prior to the commencement of such Capital Improvements and Replacements that such Capital Improvements and Replacements will have an adverse impact on EBITDA, (B) such Capital Improvements and Replacements are nevertheless approved by Owner as part of the Approved Annual Plan and Operating Budget or any Discretionary Amendment and (C) such Capital Improvements and Replacements in fact have an adverse impact on EBITDA; provided that, with respect to (iii) and (iv) as they relate to any other property under the Propco Management Agreement and/or the GVR Opco Management Agreement, Manager shall provide written notice to Owner of such Capital Improvements and Replacements promptly after Manager learns of the same. In the event of any of the foregoing, following the delivery of the audited Year End Statements for the applicable Measurement Year(s), Manager shall deliver written notice to Owner requesting an adjustment to the Performance Test and setting forth the basis for such adjustment whereupon the Parties shall meet (if necessary) to determine, in good faith, the appropriate equitable adjustment to the Performance Test. If the Parties fail to agree on such equitable adjustment, either Party may submit the matter to arbitration in accordance with Section 17.16 hereof. (2) In the event an EBITDA Percentage Adjustment Event occurs, (i) the EBITDA Percentage shall be recalculated by the Parties when a corresponding twelve (12) month period of financial reporting is available for the Combined Properties and the Performance Competitive Set; and (ii) until such time as the data necessary for the recalculation of the EBITDA Percentage is available, the Parties will endeavor to determine the appropriate equitable adjustment of the EBITDA Percentage for such interim period. In the event of any of the foregoing, following the delivery of the audited Year End Statements for the applicable Measurement Year(s), Manager shall deliver written notice to Owner requesting an adjustment to the Performance Test and setting forth the basis for such adjustment whereupon the Parties shall meet (if necessary) to determine, in good faith, the appropriate equitable adjustment to the Performance Test. If the Parties fail to agree on such equitable adjustment or on a new EBITDA Percentage (or the equitable adjustment during any interim period), either Party may submit the matter to arbitration in accordance with Section 17.16 hereof.

Adjustment of the Performance Test. (1) The Parties acknowledge and agree that the Budget Test and/or the Market Test shall each be equitably adjusted in the event that Manager’s ability to satisfy the Performance Test is adversely affected by (i) any Force Majeure that had an impact on EBITDA for any of the Combined Properties after giving effect to the proceeds received from any applicable business interruption insurance or award or other compensation payable in connection therewith; (ii) an Owner Event of Default under this Agreement, by Station GVR Acquisition LLC, a Nevada limited liability company, or any property owner thereunder under the GVR Management Agreement or by Station Casinos LLC NP Opco LLC, a Nevada limited liability company, or any property owner thereunder, thereunder under the Propco Opco Management Agreement that has an adverse impact on EBITDA for any of the Combined Properties; (iii) disapproval by Owner of an Annual Plan and Operating Budget, or any line item thereof, or any proposed Discretionary Amendment, or any line item thereof, or failure or delay by Owner in providing funds requested by Manager (including as a result of any delay caused by submission of any Dispute to arbitration or the Industry Consultant pursuant to Section 17.16 hereof) or a comparable event occurs with respect to the Propco Opco Management Agreement and/or the GVR Management Agreement that has an adverse impact on EBITDA for any of the Combined Properties; or (iv) with respect to the Market Test only, Capital Improvements and Replacements with respect to any Combined Property; provided that with respect to (iii) and (iv) as they relate to a Managed Property (A) Manager has provided written notice to Owner prior to the commencement of such Capital Improvements and Replacements that such Capital Improvements and Replacements will have an adverse impact on EBITDA, (B) such Capital Improvements and Replacements are nevertheless approved by Owner as part of the Approved Annual Plan and Operating Budget or any Discretionary Amendment and (C) such Capital Improvements and Replacements in fact have an adverse impact on EBITDA; provided that, with respect to (iii) and (iv) as they relate to any other property under the Propco Opco Management Agreement and/or the GVR Management Agreement, Manager shall provide written notice to Owner of such Capital Improvements and Replacements promptly after Manager learns of the same. In the event of any of the foregoing, following the delivery of the audited Year End Statements for the applicable Measurement Year(s), Manager shall deliver written notice to Owner requesting an adjustment to the Performance Test and setting forth the basis for such adjustment whereupon the Parties shall meet (if necessary) to determine, in good faith, the appropriate equitable adjustment to the Performance Test. If the Parties fail to agree on such equitable adjustment, either Party may submit the matter to arbitration in accordance with Section 17.16 hereof. (2) In the event an EBITDA Percentage Adjustment Event occurs, (i) the EBITDA Percentage shall be recalculated by the Parties when a corresponding twelve (12) month period of financial reporting is available for the Combined Properties and the Performance Competitive Set; and (ii) until such time as the data necessary for the recalculation of the EBITDA Percentage is available, the Parties will endeavor to determine the appropriate equitable adjustment of the EBITDA Percentage for such interim period. In the event of any of the foregoing, following the delivery of the audited Year End Statements for the applicable Measurement Year(s), Manager shall deliver written notice to Owner requesting an adjustment to the Performance Test and setting forth the basis for such adjustment whereupon the Parties shall meet (if necessary) to determine, in good faith, the appropriate equitable adjustment to the Performance Test. If the Parties fail to agree on such equitable adjustment or on a new EBITDA Percentage (or the equitable adjustment during any interim period), either Party may submit the matter to arbitration in accordance with Section 17.16 hereof.