EX-10.4 5 a2226927zex-10_4.htm EX-10.4 FORM OF TAX RECEIVABLE AGREEMENT
Exhibit 10.4
FORM OF TAX RECEIVABLE AGREEMENT
TAX RECEIVABLE AGREEMENT, dated as of [·], 2016 (this “Agreement”), among Red Rock Resorts, Inc., a Delaware corporation (the “Corporation”), Station Holdco LLC, a Delaware limited liability company (the “Company”), and each of the undersigned parties hereto identified as “ Members.” Capitalized terms used but not otherwise defined are defined in or by reference to Section 1.01.
WHEREAS, the Corporation is the managing member of, and holds and will hold Units in, the Company;
NOW, THEREFORE, the parties hereto hereby agree as follows:
“Advisory Firm” means a law or accounting firm that is nationally recognized as being expert in Tax matters and that is appointed by the Board.
“Affiliate” means, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such first Person.
“Agreed Rate” means LIBOR plus 100 basis points.
“Agreement” is defined in the preamble.
“Amended Schedule” is defined in Section 2.03(b) of this Agreement.
“Applicable Member” means in respect of that portion of any Tax Benefit Payment that relates to an Exchange or a deemed Exchange pursuant to clause (5) of the definition of “Valuation Assumptions,” the Exchanging Member or Member deemed to Exchange, as applicable.
“Available Cash” means all cash and cash equivalents of the Corporation on hand, less the amount of cash reserves reasonably established in good faith by the Corporation to (i) provide for the proper conduct of business of the Corporation, or (ii) comply with applicable law or any Senior Obligations.
“Basis Adjustment” means the adjustment to the Tax basis of an Exchange Asset as a result of (x) an Exchange or (y) the payments made pursuant to this Agreement, in each case, under the principles of Sections 732(b) and 1012 of the Code (in situations where, as a result of one or more Exchanges, the Company becomes an entity that is disregarded as separate from its owner for U.S. federal income tax purposes), or Sections 743(b) and 754 of the Code (in situations where, following an Exchange, the Company remains in existence as an entity for U.S. federal income tax purposes) and, in each case, comparable sections of state and local Tax laws, if any. Notwithstanding any other provision of this Agreement, the amount of any Basis Adjustment (a “Basis Adjustment Amount”) resulting from an Exchange of one or more Units shall be determined without regard to any Pre-Exchange Transfer of such Units and as if any such Pre-Exchange Transfer had not occurred. Payments under this Agreement shall not be treated as resulting in a Basis Adjustment to the extent such payments are treated as Imputed Interest.
“Board” means the board of directors of the Corporation.
“Business Day” means any day except a Saturday, Sunday or other day on which commercial banks in New York City, New York are authorized by law to close.
“Change Notice” is defined in Section 6.01(b) of this Agreement.
A “Change of Control” shall be deemed to have occurred if or upon:
(i) both the stockholders of the Corporation and the Board approve, in accordance with the Corporation’s certificate of incorporation and applicable law, the sale, lease or transfer, in one or a series of related transactions, of all or substantially all of the Corporation’s assets (determined on a consolidated basis), including a sale of all of the equity interests in the Company, to any Person or group (as such term is used in Section 13(d)(3) of the Exchange Act), other than to any, directly or indirectly, wholly owned Subsidiary of the Corporation, and such sale, lease or transfer is consummated;
(ii) both the stockholders of the Corporation and the Board approve, in accordance with the Corporation’s certificate of incorporation and applicable law, a merger or consolidation of the Corporation with any other Person, other than a merger or consolidation which would result in the Voting Securities of the Corporation outstanding immediately prior thereto continuing to represent (either by remaining outstanding or by being converted into Voting Securities of the surviving entity) at least 50.01% of the total voting power represented by the Voting Securities of the Corporation or such surviving entity outstanding immediately after such merger or consolidation, and such merger or consolidation is consummated; or
(iii) the acquisition, directly or indirectly, by any Person or group (as such term is used in Section 13(d)(3) of the Exchange Act) (other than (a) a trustee or other fiduciary holding securities under an employee benefit plan of the Corporation; or (b) a corporation or other entity owned, directly or indirectly, by all of the stockholders of the Corporation in substantially the same proportions as their ownership of stock of the Corporation) of beneficial ownership (as defined in Rule 13d-3 under the Exchange Act) of at least 50.01% of the aggregate voting power of the Voting Securities of the Corporation; provided that the Board recommends or otherwise approves or determines that such acquisition is in the best interest of the Corporation and its stockholders.
“Class A Common Stock” is defined in the recitals.
“Class B Common Stock” is defined in the recitals.
“Code” means the Internal Revenue Code of 1986, as amended.
“Company” is defined in the preamble.
“Control” means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through ownership of voting securities, by contract or otherwise; “Controlled” and “Controlling” shall have correlative meanings.
“Corporation” is defined in the preamble.
“Corporation Return” means each U.S. federal, state and local income Tax Return, as applicable, of the Corporation or any Exchanging Subsidiary filed with respect to Taxes for any Taxable Year.
“Cumulative Net Realized Tax Benefit” for a Taxable Year means the cumulative amount (but not less than zero) of Realized Tax Benefits for all Taxable Years of the Corporation, up to and including such Taxable Year, net of the cumulative amount of Realized Tax Detriments for the same period. The Realized Tax Benefit and Realized Tax Detriment for each Taxable Year shall be determined based on the most recent Tax Benefit Schedule or Amended Schedule, if any, in existence at the time of such determination.
“DB” means German American Capital Corporation and each Permitted Transferee (as such term is defined in the LLC Agreement) thereof, for so long as such Person (a) remains a Permitted Transferee (as such term is defined in the LLC Agreement) and (b) beneficially owns, directly or indirectly, one or more Company Units.
“Default Rate” means LIBOR plus 500 basis points.
“Determination” shall have the meaning ascribed to such term in Section 1313(a) of the Code or similar provision of state and local Tax law, as applicable, or any other event (including the execution of an IRS Form 870-AD or similar state or local Tax form) that finally and conclusively establishes the amount of any liability for Tax.
“Dispute” is defined in Section 7.08(a) of this Agreement.
“Early Termination Date” means the date of an Early Termination Notice for purposes of determining the Early Termination Payment.
“Early Termination Notice” is defined in Section 4.02 of this Agreement.
“Early Termination Payment” is defined in Section 4.03(b) of this Agreement.
“Early Termination Rate” means LIBOR plus 100 basis points.
“Early Termination Schedule” is defined in Section 4.02 of this Agreement.
“Eligible Member” means any Applicable Member that, on the date of the IPO, immediately following the purchase of Units by the Corporation using a portion of the net proceeds therefrom, held at least 10% of the Post-IPO Units; provided, that for purposes of Section 4.02, “Eligible Member” shall mean any Member that, on the date of the IPO, immediately following the purchase of Units by the Corporation using a portion of the net proceeds therefrom, held at least 10% of the Post-IPO Units.
“Excess Payment” is defined in Section 3.01(c) of this Agreement.
“Exchange” is defined in the recitals; “Exchanged” and “Exchanging” shall have correlative meanings.
“Exchange Act” means the Exchange Act of 1934, as amended.
“Exchange Agreement” means the exchange agreement, effective on or about the date hereof, among the Company, the Corporation and the Company Unitholders (as defined therein) from time to time party thereto, as amended.
“Exchange Asset” means each asset that is held by the Company, or by any of its direct or indirect Subsidiaries treated as a partnership or disregarded entity for the applicable Tax purposes but only if such indirect Subsidiaries are held only through Subsidiaries treated as partnerships or disregarded entities for the applicable Tax purposes, at the time of an Exchange. An Exchange Asset also includes any asset that is “substituted basis property” under Section 7701(a)(42) of the Code with respect to an Exchange Asset.
“Exchange Basis Schedule” is defined in Section 2.01 of this Agreement.
“Exchange Date” is defined in the recitals.
“Exchange Payment” is defined in Section 5.01 of this Agreement.
“Exchanging Subsidiary” means any Subsidiary of the Corporation that is a transferee in an Exchange pursuant to the Exchange Agreement.
“Expert” is defined in Section 7.09 of this Agreement.
“FI Station Investor” means FI Station Investor LLC and each Permitted Transferee (as such term is defined in the LLC Agreement) thereof, for so long as such Person (a) remains a Permitted Transferee (as such term is defined in the LLC Agreement) and (b) beneficially owns, directly or indirectly, one or more Company Units.
“Hypothetical Tax Liability” means, with respect to any Taxable Year, the liability for Taxes of the Corporation, any Exchanging Subsidiary or any member of an affiliated, combined or consolidated group of any of the foregoing (or, without duplication, the Company and the Company’s Subsidiaries, but only with respect to the Corporation’s or any Exchanging Subsidiary’s pro rata share of the Company’s and the Company’s Subsidiaries’ Tax liability for such Taxable Year determined using the same methods, elections, conventions and similar practices used on the Corporation Return for such Taxable Year) as would be shown on its Tax Return but determined (i) using the Non-Stepped Up Tax Basis of the Exchange Assets as reflected on the Exchange Basis Schedule, including amendments thereto, for the Taxable Year instead of the Tax basis of the Exchange Assets reflecting the Basis Adjustments and (ii) excluding any deduction attributable to Imputed Interest for the Taxable Year. Hypothetical Tax Liability shall be determined without taking into account the carryover or carryback of any Tax item (or portions thereof) that is attributable to any Basis Adjustment or to the Imputed Interest.
“Imputed Interest” shall mean any interest imputed under Section 1272, Section 1274 or Section 483 or other provision of the Code and any similar provision of state and local Tax law applicable with respect to the Corporation’s payment obligations under this Agreement.
“Interest Amount” is defined in Section 3.01(b) of this Agreement.
“IPO” means the initial public offering of shares of Class A Common Stock by the Corporation.
“IPO Sale” is defined in the recitals.
“IRS” means the U.S. Internal Revenue Service.
“LIBOR” means for each month (or portion thereof) during any period, an interest rate per annum equal to the rate per annum reported, on the date two calendar days prior to the first day of such month, on Reuters Screen LIBOR0l Page (or if such screen shall cease to be publicly available, as reported by any other publicly available source of such market rate) for London interbank offered rates for United States dollar deposits for such month (or portion thereof).
“LLC Agreement” means the Third Amended and Restated Limited Liability Company Agreement of the Company, dated as of [·], 2016, as amended.
“Market Value” means, with respect to the shares of Class A Common Stock, on any given date: (i) if the Class A Common Stock is listed for trading on the New York Stock Exchange, the closing sale price per share of Class A Common Stock on the New York Stock Exchange on that date (or, if no closing sale price is reported, the last reported sale price), (ii) if the Class A Common Stock is not listed for trading on the New York Stock Exchange, the closing sale price (or, if no closing sale price is reported, the last reported sale price) as reported on that date in composite transactions for the principal national securities exchange registered pursuant to Section 6(g) of the Exchange Act of 1934, as amended, on which the Class A Common Stock is listed, (iii) if the Class A Common Stock is not so listed on the New York Stock Exchange or a national securities exchange, the last quoted bid price for the Class A Common Stock on that date in the over-the-counter market as reported by OTC Markets Group or a similar organization, or (iv) if the Class A Common Stock is not so listed or quoted by OTC Markets Group or a similar organization the cash consideration paid for the Class A Common Stock, or the fair market value of other property delivered for the Class A Common Stock, as the Board, in its sole discretion, shall determine in good faith.
“Members” means the parties hereto, other than the Corporation and the Company, and each other Person who from time to time executes a Joinder Agreement in the form attached hereto as Exhibit A.
“Net Tax Benefit” is defined in Section 3.01(b).
“Non-Stepped Up Tax Basis” means, with respect to any asset at any time, the Tax basis that such asset would have had at such time if no Basis Adjustments and no Pre-Exchange Transfers had been made with respect to such asset.
“Notice” is defined in Section 7.01.
“Objection Notice” is defined in Section 2.03(a).
“Payment Date” means any date on which a payment is required to be made pursuant to this Agreement.
“Person” means any individual, corporation, firm, partnership, joint venture, limited liability company, estate, trust, business association, organization, governmental entity or other entity.
“Post-IPO Units” means the number of Units outstanding after giving effect to the completion of the IPO (after taking into account the delivery of shares of Class A Common Stock to the underwriters in respect of any overallotment option) and the related issuance of Units to the Corporation by the Company in exchange for the proceeds therefrom, as such number of Units may be equitably adjusted to reflect any dividend, split, subdivision or combination of shares, or reclassification, recapitalization, merger, consolidation or other reorganization of or with respect to the Units occurring subsequent to such time.
“Pre-Exchange Transfer” means any transfer (including upon the death of a Member) of one or more Units (i) that occurs prior to an Exchange of such Units, and (ii) to which Section 743(b) of the Code applies.
“Realized Tax Benefit” means, for a Taxable Year, the excess, if any, of the Hypothetical Tax Liability over the actual liability for Taxes of the Corporation, any Exchanging Subsidiary or any member of an affiliated, combined or consolidated group of any of the foregoing (or, without duplication, the Company and the Company’s Subsidiaries, but only with respect to the Corporation’s or any Exchanging Subsidiary’s pro rata share of the Company’s and the Company’s Subsidiaries’ Tax liability for such Taxable Year determined using the same methods, elections, conventions and similar practices used on the Corporation Return for such Taxable Year). If all or a portion of the actual liability for such Taxes for the Taxable Year is adjusted as a result of an audit by a Taxing Authority of such Taxable Year or any other Taxable Year, such adjustment shall not be included in determining the Realized Tax Benefit unless and until there has been a Determination.
“Realized Tax Detriment” means, for a Taxable Year, the excess, if any, of the actual liability for Taxes of the Corporation, any Exchanging Subsidiary or any member of an affiliated, combined or consolidated group of any of the foregoing (or, without duplication, the Company and the Company’s Subsidiaries, but only with respect to the Corporation’s or any Exchanging Subsidiary’s pro rata share of the Company’s and the Company’s Subsidiaries’ Tax Liability for such Taxable Year determined using the same methods, elections, conventions and similar practices used on the Corporation Return for such Taxable Year) over the Hypothetical Tax Liability for such Taxable Year. If all or a portion of the actual liability for such Taxes for the Taxable Year is adjusted as a result of an audit by a Taxing Authority of such Taxable Year or any other Taxable Year, such adjustment shall not be included in determining the Realized Tax Detriment unless and until there has been a Determination.
“Reconciliation Dispute” is defined in Section 7.09 of this Agreement.
“Reconciliation Procedures” shall mean those procedures set forth in Section 7.09 of this Agreement.
“Schedule” means any of (i) an Exchange Basis Schedule, (ii) a Tax Benefit Schedule or (iii) an Early Termination Schedule.
“Section 754 Election” means an election under Section 754 of the Code and any comparable election under applicable state or local income Tax laws, if any.
“Senior Obligations” is defined in Section 5.01 of this Agreement.
“Shortfall” is defined in Section 3.01(c) of this Agreement.
“Subsidiaries” means, with respect to any Person, as of any date of determination, any other Person as to which such Person owns, directly or indirectly, or otherwise controls more than 50% of the voting power or other similar interests (including the general partner interests or managing member or similar interests) of such Person.
“Tax Benefit Payment” is defined in Section 3.01(b) of this Agreement.
“Tax Benefit Schedule” is defined in Section 2.02 of this Agreement.
“Tax Return” means any return, declaration, report or similar statement filed or required to be filed with respect to Taxes (including any attached schedules), including any information return, claim for refund, amended return and declaration of estimated Tax.
“Taxable Year” means a taxable year of the Corporation or any Exchanging Subsidiary as defined in Section 441(b) of the Code or comparable section of state or local Tax law, as applicable (and, therefore, may include a period of less than 12 months for which a Corporation Return is prepared).
“Taxes” means any and all U.S. federal, state and local taxes, assessments or similar charges that are based on or measured with respect to net income or profits and any interest related to such taxes.
“Taxing Authority” shall mean any domestic, federal, national, state, county or municipal or other local government, any subdivision, agency, commission or authority thereof, or any quasi-governmental body exercising any taxing authority or any other authority exercising Tax regulatory authority.
“Treasury Regulations” means the final, temporary and proposed regulations under the Code promulgated from time to time (including corresponding provisions and succeeding provisions) as in effect for the relevant taxable period.
“Units” is defined in the recitals.
“Valuation Assumptions” shall mean, as of an Early Termination Date, the assumptions that (1) in each Taxable Year ending on or after such Early Termination Date, (x) the Corporation, any Exchanging Subsidiary or any member of an affiliated, combined or consolidated group of any of the foregoing will have sufficient taxable income to utilize fully the deductions arising from the Basis Adjustments and the Imputed Interest, and (y) the U.S. federal
income Tax rates and state and local income Tax rates that will be in effect for each such Taxable Year will be those specified for each such Taxable Year by the Code and other applicable laws as in effect on the Early Termination Date, (2) any loss carryovers attributable to any Basis Adjustment or Imputed Interest and available as of the date of the Early Termination Schedule will be utilized by the Corporation, any Exchanging Subsidiary or any member of an affiliated, combined or consolidated group of any of the foregoing on a pro rata basis from the date of the Early Termination Schedule through the date that is the scheduled expiration date of such loss carryovers, (3) any non-amortizable assets (other than those treated as inventory or stock in trade of the Company for U.S. federal income Tax purposes) will be disposed of on the fifteenth anniversary of the earlier of (x) the Basis Adjustment and (y) the Early Termination Date and (4) if, at the Early Termination Date, there are Units that have not been Exchanged, then each such Unit shall be deemed to be Exchanged for the Market Value of the shares of Class A Common Stock and the amount of the cash payment to which the Applicable Member would be entitled under this Agreement if the Exchange occurred on the Early Termination Date.
“Voting Securities” means any equity securities of the Corporation that are entitled to vote generally in matters submitted for a vote of the Corporation’s stockholders or generally in the election of the Board.
ARTICLE 2 DETERMINATION OF CUMULATIVE REALIZED TAX BENEFIT
(iv) the period or periods, if any, over which each Basis Adjustment Amount is amortizable and/or depreciable (which, for non-amortizable assets, shall be based on the Valuation Assumptions).
Section 2.03. Procedures, Amendments.
the Corporation with notice of an objection to such Schedule (“Objection Notice”) made in good faith. If the Corporation and such Eligible Member are unable to resolve the issues raised in such notice within 60 calendar days of receipt by the Corporation of an Objection Notice with respect to such Exchange Basis Schedule or Tax Benefit Schedule, the Corporation and such Eligible Member shall employ the reconciliation procedures as provided for in Section 7.09 of this Agreement.
ARTICLE 3 TAX BENEFIT PAYMENTS
(b) A “Tax Benefit Payment” means, with respect to an Applicable Member, an amount, not less than zero, equal to the sum of (A) the Net Tax Benefit allocable to such Member and (B) the Interest Amount allocable to such Member. For the avoidance of doubt, for Tax purposes, the Interest Amount shall not be treated as interest but instead shall be treated as additional consideration for Units in Exchanges. The “Net Tax Benefit” for a Taxable Year shall be an amount equal to the excess, if any, of (i) 85% of the Cumulative Net Realized Tax Benefit as of the end of such Taxable Year over (ii) the total amount of Tax Benefit Payments with respect to Net Tax Benefits previously made under this Section 3.01; provided, however, that no Member shall be required to return any portion of any previously received Tax Benefit Payment under any circumstances. The “Interest Amount” for a Taxable Year shall equal the interest on the Net Tax Benefit for such Taxable Year calculated at the Agreed Rate from the due date (without extensions) for the filing of the Corporation Return with respect to Taxes for such Taxable Year until the Payment Date. The Net Tax Benefit shall be determined separately with
respect to each separate Exchange on an individual basis by reference to the Exchange of a Unit and the resulting Basis Adjustments to the Corporation (as determined pursuant to Section 2.02(b)).
(c) Increase or Decrease in Future Payments.
(i) Within five (5) Business Days after the delivery of an Amended Schedule to the Applicable Members for any Taxable Year, the Corporation shall pay to the Applicable Members an amount equal to the excess, if any, of (x) the amount such Member is entitled to receive under this Agreement in respect of the relevant Taxable Year (based on such Amended Schedule) over (y) the cumulative amount such Member actually received in respect of such Taxable Year pursuant to this Agreement.
(ii) In the event that an Amended Schedule reflects a decrease in the Realized Tax Benefit (including by reason of net operating loss carryovers or carrybacks) and payments have previously been made based on the higher Realized Tax Benefit reflected in any prior Schedule (either such excess, an “Excess Payment”), future payments, if any, to be made under this Section 3.01 shall be reduced by the amount of the Excess Payment until such Excess Payment has effectively been repaid. For the avoidance of doubt, if future payments are insufficient to repay any Excess Payment (a “Shortfall”), the Members shall have no obligation to repay to the Corporation or any other Person any such Shortfall.
respect of each Exchanging Member if the Corporation or any Exchanging Subsidiary had sufficient taxable income so that there were no such limitation.
(b) If for any reason the Corporation does not fully satisfy its payment obligations to make all Tax Benefit Payments due under this Agreement in respect of a particular Taxable Year, then the Corporation and the Exchanging Members agree that (i) the Corporation shall pay the same proportion of each Tax Benefit Payment due under this Agreement in respect of such Taxable Year, without favoring one obligation over the other, and (ii) no Tax Benefit Payment shall be made in respect of any Taxable Year until all Tax Benefit Payments in respect of prior Taxable Years have been made in full.
(b) Upon a Change of Control or if the Corporation breaches any of its material obligations under this Agreement, then all of the Corporation’s obligations hereunder shall be accelerated and calculated as if an Early Termination Notice had been delivered on the date of such Change of Control or breach and such obligations shall include, but shall not be limited to, (1) the Early Termination Payment calculated as if an Early Termination Notice had been delivered on the date of such acceleration, (2) any Tax Benefit Payment agreed to by the Corporation and any Applicable Member, acting in good faith, to be due and payable but unpaid as of the date of such acceleration and (3) any Tax Benefit Payment due for the Taxable Year ending with or including the date of such acceleration (except to the extent that the amount described in this clause (3) is included in the amount described in clause (1)). Notwithstanding the foregoing, in the event that the Corporation breaches this Agreement, the Members shall be entitled to elect to receive the amounts set forth in clauses (1), (2) and (3) above or any other remedy available at law or in equity. The parties agree that the failure to make any payment due pursuant to this Agreement within three months of the date such payment is due shall be deemed to be a breach of a material obligation under this Agreement for all purposes of this Agreement;
provided that it will not be considered to be a breach of a material obligation under this Agreement to make a payment due pursuant to this Agreement within three months of the date such payment is due; provided, further that except as provided in Section 3.01(d), the failure to make any payment due pursuant to this Agreement as a result of (a) a prohibition, restriction or covenant under any credit agreement, loan agreement, note, indenture or other agreement governing indebtedness of the Company or any of its Subsidiaries or the Corporation or (b) restrictions under applicable law, including the rules and regulations of applicable gaming authorities, shall not be considered to be a breach of a material obligation under this Agreement.
(c) The Corporation, the Company and each of the Members hereby acknowledge and agree that, as of the date of this Agreement and as of the date of each Exchange, the timing and aggregate value of the Tax Benefit Payments cannot reasonably be ascertained for U.S. federal income Tax or other applicable Tax purposes.
(b) The “Early Termination Payment” as of the date of the delivery of an Early Termination Schedule shall equal, with respect to the Applicable Member, the present value, discounted at the Early Termination Rate as of such date, of all Tax Benefit Payments that would be required to be paid by the Corporation to the Applicable Member beginning from the Early Termination Date and assuming that the Valuation Assumptions are applied.
ARTICLE 5 SUBORDINATION AND LATE PAYMENTS
ARTICLE 6 NO DISPUTES; CONSISTENCY; COOPERATION
Section 6.01. Eligible Member Participation in the Corporation’s and the Company’s Tax Matters. (a) Except as otherwise provided herein or in the LLC Agreement, the Corporation shall have full responsibility for, and sole discretion over, all Tax matters concerning the Corporation, the Company and any Exchanging Subsidiary, including the preparation, filing or amending of any Tax Return and defending, contesting or settling any issue pertaining to Taxes. Notwithstanding the foregoing, the Corporation shall notify the applicable Eligible Member of, and keep the applicable Eligible Member reasonably informed with respect to, the portion of any audit of the Corporation, the Company and any Exchanging Subsidiary by a Taxing Authority the outcome of which is reasonably expected to affect the applicable Eligible Member’s rights and obligations under this Agreement, and shall provide such Eligible Member reasonable opportunity to provide information and other input to the Corporation, the Company, any Exchanging Subsidiary and their respective advisors concerning the conduct of any such portion of such audit; provided, however, that the Corporation, the Company and any Exchanging Subsidiary shall not be required to take any action that is inconsistent with any provision of the LLC Agreement. The Corporation and any Exchanging Subsidiary shall not settle or fail to contest any issue pertaining to Taxes that is reasonably expected to adversely affect any Member’s rights and obligations under this Agreement without the consent of each such Member that is an Eligible Member, such consent not to be unreasonably withheld or delayed.
(b) If the Corporation, the Company, or any of their respective Subsidiaries receives a 30-day letter, a final audit report, a statutory notice of deficiency or similar written notice from any Taxing Authority with respect to the Tax treatment of any Exchange (a “Change Notice”), which, if sustained, would result in (i) a reduction in the amount of Realized Tax Benefit with respect to a Taxable Year preceding the Taxable Year in which the Change Notice is received or (ii) a reduction in the amount of Tax Benefit Payments the Corporation will be required to pay to any Member with respect to Taxable Years after and including the Taxable Year in which the
Change Notice is received, the Corporation shall deliver prompt written notice of such Change Notice to such Member.
(b) In the event that an Advisory Firm is replaced by the Corporation, such replacement Advisory Firm shall be required to perform its services under this Agreement using procedures and methodologies consistent with those used by the previous Advisory Firm, unless (a) otherwise required by law or upon the advice of the Corporation’s counsel or (b) the Corporation and each such affected Member that is an Eligible Member agree to the use of other procedures and methodologies.
such other address or facsimile number as may hereafter be designated in writing by such party to the other parties:
If to the Corporation, to:
Red Rock Resorts, Inc.. 0000 Xxxxx Xxxxxxxx Xxxxxx Xxxxx Xxx Xxxxx, Xxxxxx 00000 Attention: Xxxxxxx X. Xxxxxxx, President
with a copies (which shall not constitute notice to the Corporation) to:
Milbank, Tweed, Xxxxxx & XxXxxx, LLP 000 Xxxxx Xxxxxxxx Xxxxxx 00xx Xxxxx Xxx Xxxxxxx, Xxxxxxxxxx 00000 Attention: Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxx
Each Notice shall be deemed received on the date sent to the recipient thereof in accordance with this Section 7.01, if sent prior to 5:00 p.m. in the place of receipt and such day is a Business Day; otherwise, such Notice shall be deemed not to have been received until the next succeeding Business Day.
Section 7.04. Governing Law. This Agreement shall be governed by, and construed in accordance with, the law of the State of Delaware, without regard to the conflicts of laws principles thereof that would mandate the application of the laws of another jurisdiction.
adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in an acceptable manner in order that the transactions contemplated hereby are consummated as originally contemplated to the greatest extent possible.
No provision of this Agreement may be amended unless such amendment is approved in writing by each of (i) the Corporation, (ii) the Company, (iii) the Members holding a majority of the then outstanding Units (excluding Units held by the Corporation or any Exchanging Subsidiary), and (iv) as long as DB or FI Station Investor holds a number of Units that is equal to or greater than ten percent (10%) of the Post-IPO Units, the consent of DB and/or FI Station Investor, as applicable; provided, that no such amendment shall be effective if such amendment would have a disproportionate effect on the payments certain Members will or may receive under this Agreement unless all such Members affected consent in writing to such amendment. No provision of this Agreement may be waived unless such waiver is in writing and signed by the party against whom the waiver is to be effective.
All of the terms and provisions of this Agreement shall be binding upon, shall inure to the benefit of and shall be enforceable by the parties hereto and their respective successors, assigns, heirs, executors, administrators and legal representatives. The Corporation shall require and cause any direct or indirect successor (whether by purchase, merger, consolidation or otherwise) to all or substantially all of the business or assets of the Corporation, by written agreement,
expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Corporation would be required to perform if no such succession had taken place.
(b) Notwithstanding the provisions of paragraph (a), the Corporation may bring an action or special proceeding in any court of competent jurisdiction for the purpose of compelling a party to arbitrate, seeking temporary or preliminary relief in aid of an arbitration hereunder, and/or enforcing an arbitration award and, for the purposes of this paragraph (b), each Member (i) expressly consents to the application of paragraph (c) of this Section 7.08 to any such action or proceeding and (ii) agrees that proof shall not be required that monetary damages for breach of the provisions of this Agreement would be difficult to calculate and that remedies at law would be inadequate.
(c) EACH PARTY HEREBY IRREVOCABLY SUBMITS TO THE JURISDICTION OF COURTS LOCATED IN NEW YORK, NEW YORK FOR THE PURPOSE OF ANY JUDICIAL PROCEEDING BROUGHT IN ACCORDANCE WITH THE PROVISIONS OF PARAGRAPH (B) OF THIS SECTION 7.08, OR ANY JUDICIAL PROCEEDING ANCILLARY TO AN ARBITRATION OR CONTEMPLATED ARBITRATION ARISING OUT OF OR RELATING TO OR CONCERNING THIS AGREEMENT. Such ancillary judicial proceedings include any suit, action or proceeding to compel arbitration, to obtain temporary or preliminary judicial relief in aid of arbitration, or to
confirm an arbitration award. The parties acknowledge that the forums designated by this paragraph (c) have a reasonable relation to this Agreement, and to the parties’ relationship with one another. The parties hereby waive, to the fullest extent permitted by applicable law, any objection which they now or hereafter may have to personal jurisdiction or to the laying of venue of any such ancillary suit, action or proceeding brought in any court referred to in the first sentence of this Section 7.08(c) and such parties agree not to plead or claim otherwise.
the Corporation, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the applicable Member in respect of whom such withholding was made.
(b) If the Corporation determines that it is required to deduct and withhold taxes with respect to any payment payable to an Applicable Member pursuant to this Agreement, the Corporation shall use commercially reasonable efforts to promptly notify such Applicable Member and will consider in good faith any theories, positions or alternative arrangements that such Applicable Member raises (reasonably in advance of the date on which the Corporation believes withholding is required) as to why withholding is not required or that may avoid the need for such withholding, provided that the Corporation is not required to incur additional costs as a result of such obligation and this Section 7.10(b) shall not in any manner limit the authority of the Corporation to withhold Taxes with respect to an Applicable Member pursuant to Section 7.10(a) hereof.
(b) If the Corporation is obligated to make an Exchange Payment hereunder and the Corporation or any Exchanging Subsidiary transfers one or more assets to a corporation (or a Person classified as a corporation for U.S. federal income Tax purposes) that is not a successor pursuant to Section 7.06 and with which the Corporation does not file a consolidated Tax Return pursuant to Section 1501 of the Code, such transferor, for purposes of calculating the amount of any Exchange Payment (e.g., calculating the gross income of the transferor and determining the Realized Tax Benefit of such transferor) due hereunder, shall be treated as having disposed of such asset in a fully taxable transaction on the date of such transfer. The consideration deemed to be received by such transferor shall be equal to the fair market value of the transferred asset, plus (i) the amount of debt to which such asset is subject, in the case of a transfer of an encumbered asset or (ii) the amount of debt allocated to the transferred partnership interest and the amount of debt to which such partnership interest is subject, in the case of a transfer of a partnership interest.
to prepare and file his or her Tax Returns, to respond to any inquiries regarding the Exchange from any Taxing Authority or to prosecute or defend any action, proceeding or audit by any Taxing Authority with respect to such returns. Notwithstanding anything to the contrary herein, each Member (and each employee, representative or other agent of such Member or assignee, as applicable) may disclose to any and all Persons, without limitation of any kind, the Tax treatment and Tax structure of the Corporation, the Company, the Members and their Affiliates, and any of their transactions, and all materials of any kind (including opinions or other Tax analyses) that are provided to the Members relating to such Tax treatment and Tax structure.
If a Member commits a breach, or threatens to commit a breach, of any of the provisions of this Section 7.12, the Corporation shall have the right and remedy to have the provisions of this Section 7.12 specifically enforced by injunctive relief or otherwise by any court of competent jurisdiction without the need to post any bond or other security, it being acknowledged and agreed that any such breach or threatened breach may cause irreparable injury to the Corporation or any of its Subsidiaries or the other Members and the accounts and funds managed by the Corporation and that money damages alone shall not provide an adequate remedy to such Persons. Such rights and remedies shall be in addition to, and not in lieu of, any other rights and remedies available at law or in equity.
[Signature pages follow]
|
RED ROCK RESORTS, INC. |
|
|
|
|
|
|
|
Name: |
|
Title: |
|
|
|
|
|
STATION HOLDCO LLC |
|
|
|
|
|
|
|
Name: |
|
Title: |
|
|
|
|
|
[MEMBER] |
|
|
|
|
|
|
|
Name: |
|
Title: |
Exhibit A
JOINDER
This JOINDER to the Tax Receivable Agreement (as amended, the “Tax Receivable Agreement”), dated as of [·], 2016, among Red Rock Resorts, Inc., a Delaware corporation (the “Corporation”), Station Holdco LLC, a Delaware limited liability company (the “Company”), and each of the undersigned parties thereto identified as “Members” constitutes the agreement and undertaking of (the “Permitted Transferee”) in favor of and for the benefit of the Corporation, the Company and the other parties to the Tax Receivable Agreement.
WHEREAS, the Transferor, in connection with the Acquisition, has required Permitted Transferee to execute and deliver this Joinder pursuant to Section 7.06 of the Tax Receivable Agreement.
Section 1.1. Definitions. Capitalized words used but not defined in this Joinder are used as defined in the Tax Receivable Agreement.
Section 1.2. Joinder. The Permitted Transferee hereby acknowledges and agrees to become a “Member” for all purposes of the Tax Receivable Agreement, including but not limited to being bound by Section 2.03, Section 4.01, Section 6.01, Section 6.02, Section 6.03 and Section 7.12 of the Tax Receivable Agreement, with respect to the Acquired Interests, and any other Interests the Permitted Transferee acquires hereafter.
Section 1.4. Governing Law. This Joinder shall be governed by, and construed in accordance with, the law of the State of Delaware, without regard to the conflicts of laws principles thereof that would mandate the application of the laws of another jurisdiction.
|
[NAME] |
|
By: |
|
|
Name: |
|
|
Title: |
|
|
| |
|
Address for Notices: | |
|
| |
|
Facsimile No. |
Exhibit B
|
|
Immediately Following IPO |
| ||
Name, Address and Facsimile Number of Member |
|
Number of Units Owned |
|
Percentage of Units Owned |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|