Document

Exhibit 10.45


Execution Version

AMENDMENT NO. 2
This AMENDMENT NO. 2 (this “Amendment”), dated as of March 5, 2021 and effective as of the Amendment No. 2 Effective Date (as hereinafter defined), is made and entered into by and among BALLY’S CORPORATION (formerly known as TWIN RIVER WORLDWIDE HOLDINGS, INC.), a Delaware corporation (the “Borrower”), the GUARANTORS, each REVOLVING LENDER party hereto, and CITIZENS BANK, N.A., as administrative agent for the Lenders under the Existing Credit Agreement (as hereinafter defined) (in such capacity, the “Administrative Agent”).
RECITALS:
WHEREAS, reference is hereby made to the Credit Agreement, dated as of May 10, 2019 (as amended by that certain Amendment No. 1, dated as of April 24, 2020, among the Borrower, the Guarantors, the Revolving Lenders party thereto and the Administrative Agent, that certain Incremental Joinder Agreement No. 1, dated as of May 11, 2020, among the Borrower, the Guarantors, the Lenders party thereto and the Administrative Agent, and that certain Limited Waiver to Credit Agreement, dated as of February 5, 2021, among the Borrower, the Guarantors, the Revolving Lenders party thereto and the Administrative Agent, and as it may be further amended, restated, amended and restated, replaced, supplemented, or otherwise modified prior to giving effect to the amendments contemplated by this Amendment, the “Existing Credit Agreement” and, after giving effect to the amendments contemplated by this Amendment, the “Credit Agreement”), among the Borrower, the Guarantors, the Lenders party thereto from time to time, the Administrative Agent, Citizens Bank, N.A., as collateral agent for the Secured Parties (as defined in the Credit Agreement), and the other parties thereto;
WHEREAS, the Borrower has requested certain amendments to the Existing Credit Agreement; and
WHEREAS, the Administrative Agent, the Borrower and the Revolving Lenders party hereto, constituting the Required Revolving Lenders, are willing to agree to such amendments pursuant to Section 13.04(a)(vii) of the Existing Credit Agreement, subject to the terms and conditions set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and agreements, provisions, and covenants herein contained and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS


ARTICLE I.Definitions.  Except as otherwise expressly provided herein, capitalized terms used in this Amendment (including in the Recitals and the introductory paragraph above) shall have the meanings given in the Credit Agreement, and the rules of construction set forth in the Credit Agreement shall apply to this Amendment.






US-DOCS\121498703.6






ARTICLE II
AMENDMENTS TO EXISTING CREDIT AGREEMENT


SECTION 2.1  Amendments to Existing Credit Agreement.  The following amendments to the
Existing Credit Agreement shall take effect and become operative upon the Amendment No. 2 Effective
Date:


(a)    Section 10.08(a) of the Existing Credit Agreement is hereby amended and replaced with the following (provided, however, that such amendments shall be disregarded for the purpose of any requirement under the Credit Agreement to be in compliance on a Pro Forma Basis with the Financial Maintenance Covenant (and Section 10.08 and related definitions as used for such purpose) for purposes of Sections 9.12(a)(iii), 10.01(n)(ii), 10.04(l), 10.04(m), 10.06(j), 10.06(k), 10.09(a)(ii) and 10.09(a)(iii) of the Credit Agreement):


(a)    Consolidated Total Net Leverage Ratio.
    (i)    Solely for the benefit of the Lenders under the Revolving Facility, without the consent of the Required Revolving Lenders, Borrower shall not permit the Consolidated Total Net Leverage Ratio as of the last day of any fiscal quarter of Borrower commencing with (i) the first complete fiscal quarter ending after the Closing Date through the fiscal quarter ending December 31, 2020 to exceed 5.50 to 1.00, (ii) the fiscal quarter ending March 31, 2021 through the fiscal quarter ending December 31, 2021 to exceed 5.25:1.00; and (iii) the fiscal quarter ending March 31, 2022 and each fiscal quarter thereafter to exceed 5.00:1.00; provided that (1) the provisions of this Section 10.08(a)(i) shall not be applicable to any such fiscal quarter if on the last day of such fiscal quarter the aggregate principal amount of Revolving Loans, Swingline Loans and Letters of Credit (excluding up to $2.5 million of issued and outstanding undrawn Letters of Credit) that are issued and/or outstanding is equal to or less than 30% of the Total Revolving Commitments and (2) this Section 10.8(a)(i) shall not apply to the extent but only for so long as Section 10.8(a)(ii) is applicable in accordance with clause (2) of the proviso thereof, provided, however, that if the Leverage Covenant Relief Period is terminated in accordance with clause (ii) of the definition thereof, this Section 10.08(a)(i) shall apply for each fiscal quarter after the Qualifying Quarter.
    (ii)    Notwithstanding Section 10.8(a)(i) above, but only for so long as each and every Leverage Covenant Relief Period Condition shall be satisfied for the duration of the Leverage Covenant Relief Period, then solely for the benefit of the Lenders under the Revolving Facility, without the consent of the Required Revolving Lenders, Borrower shall not permit the Consolidated Total Net Leverage Ratio as of the last day of any fiscal quarter of Borrower commencing with (i) the fiscal quarter ending March 31, 2021 to exceed 6.25:1.00; (ii) the fiscal quarter ending June 30, 2021 to exceed 6.00:1.00; (iii) the fiscal quarter ending September 30, 2021 to exceed 5.75:1.00; (iv) the fiscal quarter ending December 31, 2021 to exceed 5.50:1.00 and (v) the fiscal quarter ending March 31, 2022 and each fiscal quarter thereafter to exceed 5.00:1.00; provided that (1) the provisions of this Section 10.08(a)(ii) shall not be applicable to any such fiscal quarter if on the last day of such fiscal quarter the aggregate principal amount of Revolving Loans, Swingline Loans and Letters of Credit (excluding up to $2.5 million of issued and outstanding undrawn Letters of Credit) that are issued and/or
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outstanding is equal to or less than 30% of the Total Revolving Commitments and (2) for the avoidance of doubt, (I) if at any time during the Leverage Covenant Relief Period, a default shall be made in the due observance or performance by Borrower or any Restricted Subsidiary of any Leverage Covenant Relief Period Condition or (II) Borrower shall fail to deliver the Compliance Certificate and Section 9.04 Financials in respect of the fiscal quarter ending March 31, 2021 on or prior to the dates required by this Agreement, then this Section 10.08(a)(ii) shall be null and void and shall be deemed to not have applied in respect of any Test Period ending during the Leverage Covenant Relief Period and (3) if the Leverage Covenant Relief Period is terminated in accordance with clause (ii) of the definition thereof, then the maximum Consolidated Total Net Leverage Ratio levels for each fiscal quarter after the Qualifying Quarter shall be those as in effect and set forth in Section 10.08(a)(i).
(b)    Section 10.08(c) of the Existing Credit Agreement is hereby amended and replaced with the following (provided, however, that such amendments shall be disregarded for the purpose of any requirement under the Credit Agreement to be in compliance on a Pro Forma Basis with the Financial Maintenance Covenant (and Section 10.08 and related definitions as used for such purpose) for purposes of Sections 9.12(a)(iii), 10.01(n)(ii), 10.04(l), 10.04(m), 10.06(j), 10.06(k), 10.09(a)(ii) and 10.09(a)(iii) of the Credit Agreement):
(c)    Notwithstanding anything to the contrary in the definition of “Consolidated EBITDA” (but subject to clause (f) below), solely for purposes of Section 10.08(a)(ii), Consolidated EBITDA for the Test Period ending March 31, 2021 shall be deemed to be Consolidated EBITDA for the fiscal quarter ending March 31, 2021 multiplied by 4, (ii) Consolidated EBITDA for the Test Period ending June 30, 2021 shall be deemed to be Consolidated EBITDA for the fiscal quarters ending March 31, 2021 and June 30, 2021 multiplied by 2 and (iii) Consolidated EBITDA for the Test Period ending September 30, 2021 shall be deemed to be Consolidated EBITDA for the fiscal quarters ending March 31, 2021, June 30, 2021 and September 30, 2021 multiplied by 4/3.
(c)    Section 10.08 of the Existing Credit Agreement is hereby amended by inserting a new clause (f) thereof as follows (provided, however, that such amendments shall be disregarded for the purpose of any requirement under the Credit Agreement to be in compliance on a Pro Forma Basis with the Financial Maintenance Covenant (and Section 10.08 and related definitions as used for such purpose) for purposes of Sections 9.12(a)(iii), 10.01(n)(ii), 10.04(l), 10.04(m), 10.06(j), 10.06(k), 10.09(a)(ii) and 10.09(a)(iii) of the Credit Agreement):
(f)    Notwithstanding anything to the contrary in the definition of “Consolidated EBITDA”, solely for purposes of Section 10.08(a)(ii), “Consolidated EBITDA” for the Test Periods ending March 31, 2021, June 30, 2021, September 30, 2021 and December 31, 2021 shall (i) exclude the Consolidated Net Income and Consolidated EBITDA (positive or negative and including in any “pro forma” calculation) of Premier Entertainment AC, LLC or otherwise attributable to the operations of the property commonly known as Bally’s Atlantic City during such Test Period and (ii) add an amount equal to $3,000,000 for each fiscal quarter included in such Test Period.


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ARTICLE III
REPRESENTATIONS AND WARRANTIES


SECTION 3.1  None of the execution, delivery and performance by any Credit Party of this Amendment nor the consummation of the transactions herein do or will (i) conflict with or result in a breach of, or require any consent (which has not been obtained and is in full force and effect) under (x) any Organizational Document of any Credit Party or (y) any applicable Requirement of Law (including, without limitation, any Gaming/Racing Law) or (z) any order, writ, injunction or decree of any Governmental Authority binding on any Credit Party or result in a breach of, or require termination of, any term or provision of any Contractual Obligation of any Credit Party or (ii) constitute (with due notice or lapse of time or both) a default under any such Contractual Obligation or (iii) result in or require the creation or imposition of any Lien (except for the Liens created pursuant to the Security Documents) upon any Property of any Credit Party pursuant to the terms of any such Contractual Obligation, except with respect to clauses (i)(y), (i)(z), (ii), or (iii) which would not reasonably be expected to result in a Material Adverse Effect.
SECTION 3.2  The representations and warranties contained in Article VIII of the Credit Agreement and in the other Credit Documents are true and correct in all material respects on and as of the Amendment No. 2 Effective Date (except where such representations and warranties expressly relate to an earlier date, in which case such representations and warranties were true and correct in all material respects as of such earlier date); provided that, any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language is (or was) true and correct in all respects.
ARTICLE IV
CONDITIONS TO THE AMENDMENT NO. 2 EFFECTIVE DATE


This Amendment shall become effective on the date (the “Amendment No. 2 Effective Date”) on which each of the following conditions is satisfied or waived:
SECTION 4.1  Execution of Counterparts.  The Administrative Agent shall have received executed counterparts of this Amendment from each Credit Party, the Revolving Lenders constituting the Required Revolving Lenders, and the Administrative Agent.
SECTION 4.2  Corporate Documents.  The Administrative Agent shall have received an Officer’s Certificate of the Borrower, dated the Amendment No. 2 Effective Date, certifying that the conditions set forth in Section 4.3 hereof have been satisfied.
SECTION 4.3  No Default or Event of Default; Representations and Warranties True.  Both immediately prior to this Amendment and also after giving effect to this Amendment:
(1)no Default or Event of Default shall have occurred and be continuing; and
(2)each of the representations and warranties made by the Credit Parties in Article VIII of the Credit Agreement, Article III hereof and in the other Credit Documents shall be true and correct in all material respects on and as of the Amendment No. 2 Effective Date (it being understood and agreed that any such representation or warranty which by its terms is made as of an earlier date shall be required to be true and correct in all material respects only as of such earlier date, and that any representation and warranty that is qualified as to “materiality,” “Material Adverse Effect” or similar language shall be true and correct in all respects on the applicable date).
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SECTION 4.4  Fees and Expenses.  
(a)    The Administrative Agent shall have received all fees and expenses required to be paid by the Borrower for which reasonably detailed invoices have been presented (including the reasonable fees and expenses of Latham & Watkins LLP), on or before the Amendment No. 2 Effective Date, but in no event less than two (2) Business Days prior to Amendment No. 2 Effective Date unless otherwise agreed to by Borrower.
ARTICLE V
VALIDITY OF OBLIGATIONS AND LIENS


SECTION 5.1  Reaffirmation.  Each of the Credit Parties party hereto (a) acknowledges and agrees that all of such Credit Party’s obligations under the Security Documents and the other Credit Documents (as amended hereby) to which it is a party are reaffirmed and remain in full force and effect on a continuous basis as amended by this Amendment, (b) reaffirms each lien and security interest granted by it to the Collateral Agent for the benefit of the Secured Parties to secure the Secured Obligations and the guaranties of the Guaranteed Obligations made by it pursuant to the Existing Credit Agreement, and (c) acknowledges and agrees that the grants of liens and security interests by, and the guaranties of, the Credit Parties contained in the Existing Credit Agreement and the Security Documents are, and shall remain, in full force and effect, and continue to secure the Secured Obligations and guaranty the Guaranteed Obligations, after giving effect to this Amendment and the transactions contemplated hereby and thereby.
ARTICLE VI
MISCELLANEOUS


SECTION 6.1  Amendment, Modification and Waiver.  This Amendment may not be amended, modified or waived except by an instrument or instruments in writing signed and delivered on behalf of the Borrower and the Administrative Agent (acting at the direction of such Lenders as may be required under Section 13.04 of the Credit Agreement).
SECTION 6.2  Entire Agreement.  This Amendment (including the Schedules and Exhibits) and the other Credit Documents constitute the entire agreement among the parties with respect to the subject matter hereof and thereof and supersede all other prior agreements and understandings, both written and verbal, among the parties or any of them with respect to the subject matter hereof.  Each Revolving Lender party hereto, in its capacity as a Revolving Lender hereunder and in its capacity as a Revolving Lender under the Existing Credit Agreement, hereby consents to the amendments set forth herein.
SECTION 6.3 GOVERNING LAW.  THIS AMENDMENT AND ANY CLAIMS, CONTROVERSIES, DISPUTES, OR CAUSES OF ACTION (WHETHER ARISING UNDER CONTRACT LAW, TORT LAW OR OTHERWISE) BASED UPON OR RELATING TO THIS AMENDMENT, SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW PRINCIPLES THAT WOULD APPLY THE LAWS OF ANOTHER JURISDICTION.
SECTION 6.4 SUBMISSION TO JURISDICTION; WAIVER OF VENUE; SERVICE OF PROCESS; WAIVER.  EACH PARTY HERETO AGREES THAT SECTIONS 13.09(b), 13.09(c), 13.09(d), AND 13.09(e) OF THE CREDIT AGREEMENT SHALL APPLY TO THIS AMENDMENT MUTATIS MUTANDIS.
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SECTION 6.5  No Advisory or Fiduciary Responsibility.  Each party hereto agrees that Section 13.17 of the Credit Agreement shall apply to this Amendment mutatis mutandis.
SECTION 6.6  Severability.  Wherever possible, each provision of this Amendment shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Amendment shall be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of such provisions or the remaining provisions of this Amendment.
SECTION 6.7  Counterparts.  This Amendment may be executed in counterparts (and by different parties hereto on different counterparts), each of which shall constitute an original, but all of which when taken together shall constitute a single contract.  Delivery of an executed signature page to this Amendment by facsimile or other electronic transmission (including portable document format (“.pdf”) or similar format) shall be effective as delivery of a manually executed counterpart hereof. The words “execution,” “signed,” “signature,” “delivery,” and words of like import in or relating to this Amendment and any document to be signed in connection with this Amendment and the transactions contemplated hereby shall be deemed to include an electronic symbol or process attached to a contract or other record and adopted by a Person with the intent to sign, authenticate or accept such contract or record (each an “Electronic Signature”), deliveries or the keeping of records in electronic form, each of which shall be of the same legal effect, validity or enforceability as a manually executed signature, physical delivery thereof or the use of a paper-based recordkeeping system, as the case may be, to the extent and as provided for in any applicable law, including the Federal Electronic Signatures in Global and National Commerce Act, the New York State Electronic Signatures and Records Act, or any other similar state laws based on the Uniform Electronic Transactions Act; provided that nothing herein shall require the Administrative Agent to accept Electronic Signatures in any form or format without its prior written consent.  Without limiting the generality of the foregoing, the Borrower hereby (i) agrees that, for all purposes, including without limitation, in connection with any workout, restructuring, enforcement of remedies, bankruptcy proceedings or litigation among the Administrative Agent, the Lenders and the Credit Parties, electronic images of this Amendment or any other Credit Documents (in each case, including with respect to any signature pages thereto)  shall have the same legal effect, validity and enforceability as any paper original, and (ii) waives any argument, defense or right to contest the validity or enforceability of the Credit Documents based solely on the lack of paper original copies of any Credit Documents, including with respect to any signature pages thereto.
SECTION 6.8  Credit Document.  This Amendment shall constitute a “Credit Document”, as defined in the Credit Agreement.
SECTION 6.9  No Novation.  The parties hereto expressly acknowledge that it is not their intention that this Amendment or any of the other Credit Documents executed or delivered pursuant hereto constitute a novation of any of the obligations, covenants, or agreements contained in the Existing Credit Agreement or any other Credit Document, but rather constitute a modification thereof or supplement thereto pursuant to the terms contained herein.  The Existing Credit Agreement and the other Credit Documents, in each case as amended, modified, or supplemented hereby, shall be deemed to be continuing agreements among the parties thereto, and all documents, instruments, and agreements delivered, as well as all Liens created, pursuant to or in connection with the Existing Credit Agreement and the other Credit Documents shall remain in full force and effect, each in accordance with its terms (as amended, modified, or supplemented by this Amendment), unless such document, instrument, or agreement has otherwise been terminated or has expired in accordance with or pursuant to the terms of this Amendment or such document, instrument, or agreement or as otherwise agreed by the required parties hereto or thereto, it being understood that from after the occurrence of the Amendment No. 2 Effective Date, each reference in the Credit Documents to the “Credit Agreement,” “thereunder,” “thereof” (and each reference in the Credit Agreement 
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to “this Agreement,” “hereunder,” or “hereof”) or words of like import shall mean and be a reference to the Credit Agreement as amended, modified or supplemented by this Amendment.
SECTION 6.10  Expenses.  Without duplication of any amounts required to be paid pursuant to Section 4.4, the Borrower agrees to reimburse the Administrative Agent for its reasonable and documented out-of-pocket expenses incurred by them in connection with this Amendment, including the reasonable and documented fees, charges and disbursements of Latham & Watkins LLP, counsel for the Administrative Agent.


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IN WITNESS WHEREOF, the parties have caused this Amendment to be duly executed as of the day and year first above written, to be effective as of the Amendment No. 2 Effective Date.
						
	Borrower:
		
	BALLY'S CORPORATION
	(formerly known as TWIN RIVER
	WORLDWIDE HOLDINGS, INC.)
		
	By:
	Name:	Craig L. Eaton
	Title:	Executive Vice President, General
		Counsel and Secretary


						
	Guarantors:
		
	TWIN RIVER MANAGEMENT GROUP, INC.
	UTGR, INC.
	PREMIER ENTERTAINMENT BILOXI LLC
	PREMIER FINANCE BILOXI CORP.
	JAMLAND, LLC
	TWIN RIVER-TIVERTON, LLC
	PREMIER ENTERTAINMENT III, LLC
	DOVER DOWNS, INC.
	PREMIER ENTERTAINMENT BLACK HAWK,
	LLC	
	PREMIER ENTERTAINMENT VICKSBURG, LLC
	(formerly known as RAINBOW CASINO
	VICKSBURG PARTNERSHIP, L.P.)
	IOC-KANSAS CITY, INC.
		
		
		
	By:	
	Name:	Craig L. Eaton
	Title:	Executive Vice President, General
		Counsel and Secretary


[Signature Page to Amendment No. 2 to Credit Agreement]










						
	Acknowledged and Agreed by:
		
	CITIZENS BANK, N.A., as Administrative Agent

		
		
	By:	
	Name:	Sean McWhinnie
	Title:	Director
		
		










































































[Signature Page to Amendment No. 2 to Credit Agreement] 










									
	BANK OF AMERICA, N.A., as a Lender

			
			
	By:	
		Name:	Brian D. Corum
		Title:	Managing Director
			
			




















[Signature Page to Amendment No. 2 to Credit Agreement] 













			
	

									
	CAPITAL ONE, N.A., as a Lender

			
			
	By:	
		Name:	David Dale
		Title:	Duly Authorized Signatory
			
			






































































[Signature Page to Amendment No. 2 to Credit Agreement]










									
	CREDIT SUISSE AG, CAYMAN ISLANDS BRANCH, as a Lender

			
			
	By:	Name:	William O'Daly
		Title:	Authorized Signatory
			
			
	By:		
		Name:	Komal Shah
		Title:	Authorized Signatory




































































[Signature Page to Amendment No. 2 to Credit Agreement]








									
	CITIZENS BANK, N.A., as a Lender

			
			
	By:		
		Name:	Sean McWhinnie
		Title:	Director
			
			












































































[Signature Page to Amendment No. 2 to Credit Agreement]








									
	DEUTSCHE BANK AG NEW YORK BRANCH, as a Lender

			
	By:		
		Name:	Yumi Okabe
		Title:	Vice President
			Email: yumi.okabe@db.com
			Tel: (212) 250-2966
			
			
	By:		
		Name:	Michael Strobel
		Title:	Vice President
			michael-p.strobel@db.com
			212-250-0939






























































[Signature Page to Amendment No. 2 to Credit Agreement]








									
	FIFTH THIRD BANK, NATIONAL ASSOCIATION, as a Lender

			
	By:		
		Name:	Knight D. Kieffer
		Title:	Managing Director
			
















































































[Signature Page to Amendment No. 2 to Credit Agreement]








									
	GOLDMAN SACHS BANK USA, as a Lender

			
			
	By:		
		Name:	Dan Martis
		Title:	 Authorized Signatory
			
			












































































[Signature Page to Amendment No. 2 to Credit Agreement]










									
	TRUIST BANK, as a Lender

			
			
	By:		
		Name:	Tesha Winslow
		Title:	Director
			
			










































































[Signature Page to Amendment No. 2 to Credit Agreement]








									
	The Washington Trust Company, as a Lender

			
	By:		
		Name:	Renee A. Riley
		Title:	Vice President, Commercial Lending
			


(if a second signature is necessary:)


									
	By:		
		Name:	
		Title:	


[Signature Page to Amendment No. 2 to Credit Agreement]