EXHIBIT 10.31
FIRST AMENDMENT TO THE AMENDED
AND RESTATED GROUND LEASE AGREEMENT
AND CONSENT AND WAIVER
This First Amendment to the Amended and Restated Ground Lease Agreement and
Consent and Waiver (the "Amendment") is made effective as of the 25th day of
August, 1997, (the Effective Date") by and between Primm South Real Estate
Company, a Nevada corporation ("Landlord") and The Primadonna Corporation, a
Nevada corporation ("Tenant").
RECITALS
A. Landlord and Tenant entered into an Amended and Restated Ground Lease
Agreement effective as of July 1, 1993 ("Lease"). All capitalized terms not
otherwise defined in this Amendment shall have the meanings as set forth in the
Lease.
B. Landlord has caused the filing and recordation of that certain parcel map
with the County Recorder's Office of ▇▇▇▇▇ County, Nevada on April 23, 1997 in
the Parcel Maps Official Records Book No. 970423 as Map No. 01700, File No.
088, at Page 0077 (the "Parcel Map") which created four (4) separate legal
parcels, designated as ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇ 3, and Parcel 4.
C. Tenant desires to enlarge the leasehold parcel denoted as the "Primadonna
Parcel" in the Lease from 32.85 acres to 37.8 acres, and additional 4.95 acres
(the "Additional Acreage"). The enlarged Primadonna Parcel shall constitute
Parcel 1 of the Parcel Map, excepting therefrom the Fast Food Parcel.
D. Tenant desires to decrease the leasehold parcel denoted as the "R.V. Park
Parcel" in the Lease and designated as the "RV Park Parcel" in Exhibit "A" to
the Lease from 27.49 acres to 24.63 acres, a net decrease of 2.86 acres (the
"Decreased Acreage"). The revised RV Park Parcel shall constitute Parcel 2 of
the Parcel Map.
E. Subject to the Exclusivity Covenant under Subsection 5.2 of the Lease, the
Easements and the right of first refusal granted to Tenant under Section 21.1
of the Lease, Landlord intends to transfer or has transferred all or a portion
of the real property it presently owns in ▇▇▇▇▇ County, Nevada, which lies east
of Interstate 15 and which is presently undeveloped and which is part of the
real property described in Exhibit "F" to the Lease and designated therein as
the "Landlord's ▇▇▇▇▇ County Property" to Primm 650 Limited Partnership, a
Nevada limited partnership ("Primm 650") and/or another entity or entities
controlled by, or under common control with, Landlord in order to facilitate
the development of the Landlord's ▇▇▇▇▇ County Property, including, but not
limited to, the development of a thematic entertainment retail shopping outlet
complex to be known as the "Fashion Outlet of Las Vegas" (the "Mall") to be
constructed in one or two phases on a portion of Parcel 3 of the Parcel Map
immediately adjacent to the Primadonna Parcel (the "Mall Parcel"). Primm 650
and Fashion Outlet of Las Vegas Associates, a Nevada general partnership (the
"Mall Tenant") have entered into a ground lease dated February 26, 1997 (the
"Mall lease") whereby Primm 650 has agreed to lease the Mall Parcel to the
Mall Tenant.
F. Landlord and Tenant desire to amend the Lease to set forth the revisions
contemplated by these Recital and to consent to or waive certain of the rights
and obligations under the Lease as set forth herein.
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AGREEMENT
NOW THEREFORE, based upon the foregoing Recitals which by reference thereto are
incorporated herein, Landlord and Tenant hereby agree as follows:
1. The legal description of the Property contained in Subsection 1.2 of the
Lease is hereby amended by: (a) the substitution of the legal description set
forth in Exhibit "A" attached hereto which shall hereafter be referred to as
the "▇▇▇▇▇ Valley Resort and Casino Parcel" in replacement for the legal
description of the Primadonna Parcel set forth in and as a part of Exhibit "A"
of the Lease and designated herein as the "Primadonna Hotel and Casino Parcel"
and, (b) the substitution of the legal description set forth in Exhibit "A"
attached hereto which shall hereafter be referred to as the "RV Park Parcel" in
replacement for the legal description of the RV Park Parcel set forth in and as
a part of Exhibit "A" of the Lease and designated therein as the "RV Park
Parcel".
2. Rent for the Additional Acreage shall be calculated at $36,832.00 per acre
per year or fraction thereof and shall be adjusted under Subsection 4.3 of the
Lease as if such Additional Acreage had been part of the Property from the
Effective Date through the Additional Base Rent Commencement Date as
hereinafter defined ("Additional Base Rent"). Additional Base Rent shall
commence upon the earlier to occur of (i) the date Tenant uses all or any
portion of the improvements to be constructed on the Additional Acreage, (ii)
when the Mall Tenant opens to the general public the Mall to be constructed on
the Mall Parcel, and (iii) August 1, 1999 ("Additional Base Rent Commencement
Date"). Until the Additional Base Rent Commencement Date, Tenant shall continue
to pay the then applicable monthly Base Rent under Section 4 of the Lease
(without any adjustment for the Additional Acreage or the Decreased Acreage).
As of the Additional Base Rent Commencement Date, the then Base Rent under the
Lease shall be increased by the Additional Base Rent and decreased by that
portion of the Base Rent attributable to the Decreased Acreage and thereafter
as set forth in Subsection 4.3 and 4.4 of the Lease. If the Additional Base
Rent Commencement Date occurs on a day other than the last day of a month, then
the Base Rent as thereby adjusted shall be prorated based upon the number of
actual days remaining in such month.
3. Landlord and Tenant hereby acknowledge that Landlord has conveyed title to
Parcel 3 of the Parcel Map to Primm 650. Tenant hereby waives its right of
first refusal under Section 21 of the Lease and consents to Landlord's
conveyance of title to parcel 3 of the Parcel map to Primm 650, subject to the
Exclusivity Covenant under Subsection 5.2 of the Lease and the Easements and,
provided further, that Tenant's right of first refusal granted under Section
21.1 of the Lease shall continue to be applicable to Primm 650 and all or any
portion of the landlord's ▇▇▇▇▇ County Property it acquires from Landlord.
Tenant hereby consents to the mall Lease entered into between Primm 650 and
the Mall Tenant and waives its right of first refusal under Section 21 of the
Lease as to the Mall Parcel and the Mall Lease.
4. Landlord, Tenant, Primm 650 and Mall Tenant have entered into, or intend to
enter into, a "Lease of Water Rights and Wastewater Capacity" (the "Water
Lease") whereby Tenant, pursuant to and in partial satisfaction of Subsection
13.2(b) of the Lease, at the request of Primm South and Primm 650 for the
benefit of Primm 650 and its Mall Tenant has or will agree to lease a maximum
of 90 acre feet of extractive water rights for the first phase of the Mall and
a maximum of 67.5 acre feet of extractive water rights for the second phase of
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the mall, together with the use of Tenant's Water and Sewer Rights and
Facilities. Landlord and Tenant agree that by landlord's execution of the Water
Lease, Landlord consents to such lease by Tenant to the mall Tenant and
Landlord waives its right of first refusal under Subsection 13.2(c) of the
Lease as to, and only as to, those water rights and the Water and Sewer Rights
and Facilities which are the subject of the Water Lease.
5. Subsection 13.5 of the Lease is hereby amended by deleting Subsection 13.5
in its entirety and by adding a new Subsection 13.5 which shall read a follows:
13.5 Assignability of Landlord's Rights. Subject to the provisions of
Section 13.2(b), Landlord shall have the right to assign all or any
portion of Landlord's rights set forth in this Section 13 to any
entity which is directly or indirectly controlled by or is under
common control with Landlord and which owns or leases all or any
portion of the Property and/or Landlord's ▇▇▇▇▇ County Property. For
purposes of this Section 13, the terms "controlled by" or "is under
the common control with" shall mean the possession, direct or
indirect, of the power to direct or cause the direction of the
management and policies of a person or entity, whether through the
ownership of voting securities, acting as general partner as a
manager, or by contract or otherwise.
6. Landlord and Tenant agree to execute, acknowledge and record an Amendment of
Memorandum of Ground Lease in the form and content attached hereto as Exhibit
"B".
7. Tenant's leasehold estate under the Lease is presently encumbered by that
certain Leasehold, Fee and Water Rights Deed of Trust, Fixture Filing and
Security Agreement with Assignment of Rents dated as of June 5, 1997 and
recorded on June 5, 1997, in Book 970605, as Document No. 1951, ▇▇▇▇▇ County,
Nevada, Official records (the "Leasehold Mortgage"), executed by The Primadonna
Corporation, a Nevada corporation, as trustor and debtor, to United Title of
Nevada, Inc., a Nevada corporation, as trustee, to and for the benefit of ▇▇▇▇▇
Fargo Bank, National Association, in its capacity as Agent Bank on behalf of
the Lenders, Swingline lender and L/C Issuer, all of which are defined and
described in that certain Credit Agreement dated as of June 5, 1997, executed
by and among Primadonna Resorts, Inc., a Nevada Corporation, and Tenant, as the
borrowers, and the Agent Bank, Lenders, Co-Agents, Lead managers, Swingline
Lender and L/C Issuer therein described (collectively the "Banks"), as a
beneficiary and secured party (in such capacity the ("Agent Beneficiary"). This
Amendment shall not be effective until Tenant obtains from the Agent
Beneficiary a written consent to the Amendment.
8. All exhibits referred to herein and attached to this Amendment are
incorporated herein by reference.
9. Section 23 of the Lease is hereby amended by deleting the address of
Landlord as it appears therein and adding a new address for Landlord which is
as follows:
Landlord: ▇▇▇▇▇ South Real Estate Company
c/o ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, President
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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with copy to: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Hale, Lane, Peek, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ and Pearl
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
10. The Lease, as amended by this Amendment, shall remain in full force and
effect.
11. This Amendment may be executed in counterparts, all of which executed
counterparts shall together constitute a single document. Signature pages may
be detached from the counterparts and attached to a single copy of this
document to physically form one document.
IN WITNESS WHEREOF, Landlord and Tenant have executed this First Amendment to
the Amended and Restated Ground Lease and Consent and Waiver as of the day and
year first written above.
LANDLORD: PRIMM SOUTH REAL ESTATE COMPANY
a Nevada corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
TENANT: THE PRIMADONNA CORPORATION,
a Nevada corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
_________________________
▇▇▇▇ ▇. ▇▇▇▇▇,
President
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