Exhibit 10.1
This EIGHTH AMENDMENT TO
LEASE AND DEVELOPMENT AGREEMENT (the “Amendment”) is made and entered
into this 15
th day of September, 2011 by and between the ST. LOUIS COUNTY PORT
AUTHORITY, a public body corporate and politic of the State of Missouri (the “Landlord”) and
PINNACLE ENTERTAINMENT, INC., a Delaware corporation (the “Tenant.”)
RECITALS
A. Landlord and Tenant entered into a
Lease and Development Agreement dated as of August 12,
2004, as amended by letter agreement of even date, letter agreement dated October 4, 2005, Second
Amendment to
Lease and Development Agreement dated October 28, 2005 (the “Second Amendment”), Third
Amendment to
Lease and Development Agreement dated August 11, 2006 (the “Third Amendment”), Fourth
Amendment to
Lease and Development Agreement dated January 18, 2007 (the “Fourth Amendment”), and
as further amended by Fifth Amendment to
Lease and Development Agreement dated March 30, 2007 (the
“Fifth Amendment”), and as further amended by Sixth Amendment to
Lease and Development Agreement
dated November 26, 2007 (the “Sixth Amendment “), and as further amended by Seventh Amendment to
Lease and Development Agreement dated February 19, 2010 (the “Seventh Amendment”) (collectively,
the “
Lease and Development Agreement”) which governs among other things the development of the
Property.
B. The Landlord and Tenant desire to amend the Lease and Development Agreement to (a)
eliminate the requirement that Tenant construct a hatch shell on the Park Property, (b) amend the
description of the improvements to be constructed by Tenant during Phase II of the Project (c)
amend the deadline for completion of Phase II of the Project, (d) include provisions related to the
formation of a Community Improvement District and a Transportation Development District or a Port
Improvement District; and (e) make certain other changes to the Lease and Development Agreement.
C. Capitalized terms used herein and not otherwise defined, or redefined as the case may be,
shall have the meanings ascribed to them in the Lease and Development Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and agreements of the parties
contained herein, Landlord and Tenant agree to amend the Lease and Development Agreement as
follows:
1. Section 4 is amended as follows:
a. The language added after the caption “Project Construction and Development” shall
be amended and restated as follows:
“The Tenant shall at its sole cost and expense, undertake a two phase project for an
aggregate investment of at least $450,000,000. “Phase I of the Project” shall mean the (i)
development, construction and operation of the Gaming Facilities on the Property which shall
mean a minimum 90,000 square foot casino containing not less than 2000 slots and 50 table
games, three restaurants, a gift shop and parking sufficient to service the aforesaid
facilities (the “Gaming Facilities”), (ii) the Environmental Remediation of the Landlord’s
Property and the Known Conditions of the Access Road Property, (iii) a contribution by
Tenant in the amount of $5,100,000 to the Landlord, or such other party as is designated by
Landlord, for the construction of the community/aquatic center and the soccer fields; and
(iv)the development and construction of the Project Roadway, including replacement of the
▇▇▇▇▇ Road Bridge (hereinafter defined). Tenant has completed Phase I of the Project with a
total investment of not less than $375,000,000. “Phase II of the Project” shall mean the
development and construction on the Property of: (i) a hotel with a minimum of 200 rooms
with lobby; (ii) a meeting room/event space of not less than 10,000 square feet that is
adjacent to the hotel with a capacity of at least 500 guests with sit-down tables or 750
guests in the absence of tables; and (ii) a parking garage with a minimum of 1600 spaces.
Tenant intends to make a total investment of not less than $78,000,000 on Phase II of the
Project. Phase I and Phase II of the Project are collectively called the “Project”.”
A new Exhibit C to the Lease and Development Agreement is substituted entitled “Essential
Elements”, which is attached to hereto as Exhibit 1.
b. Section 4(h) is amended and restated as follows:
“Community Facilities. Tenant’s right and obligation to construct the hatch shell on the
Park Property are eliminated and Tenant shall have no rights with respect to the use and
development of the Park Property other than the rights provided in section 4(x) and the right of
access through the Park Property provided in the Access Easement recorded at Book 18915 Page 2072
of St. Louis County Recorder of Deeds. Tenant shall not be subject to any liquidated damages or
penalty, financial or otherwise, as a result of the hatch shell not being constructed. Landlord
acknowledges that Tenant has satisfied all of its obligations under this Section 4(h).”
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c. Section 4(i) is amended and restated as follows:
“Phase II of the Project. Within thirty (30) calendar days of the execution of this
Amendment, Tenant shall provide Landlord with a timetable including milestones for the completion
of all material elements of Phase II of the Project. Tenant, at Tenant’s sole cost and expense,
shall achieve substantial completion of Phase II of the Project by October 31, 2013.Tenant shall
have the right, in Tenant’s discretion, to engage any one or more third party developers,
contractors, or other qualified person or corporation to develop, construct or operate all or any
portion of Phase II of the Project. In the event Tenant fails to achieve substantial completion of
Phase II by October 31, 2013, Tenant shall pay to Landlord additional payment or payments in the
amounts set forth below on November 1 of each year (or prorated if less than a year), commencing on
November 1, 2013 until such time as Tenant has met its obligations with respect to Phase II or
paid a total amount of $20,000,000 to the Landlord, which sums will be collected by Landlord as
liquidated damages and not as penalty and in such event, the Landlord shall not have any other
rights or remedies against Tenant with respect to Tenant’s failure to open and operate Phase II of
the Project; provided however, that if the Lease shall be terminated by Tenant pursuant to the
provisions of Section 24 after any such annual payments have been paid or have become due and
payable, then Landlord’s recovery of amounts due for failure to open and operate Phase II of the
Project, in addition to any payments due under Section 24, shall be limited, effective as of the
date this Lease is terminated, to the greater of $12,000,000 or the total amount theretofore paid
or due Landlord pursuant to this subsection (i).
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Year one |
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$ |
2,000,000 |
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Year two |
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$ |
3,000,000 |
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Year three |
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$ |
4,000,000 |
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Year four |
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$ |
5,000,000 |
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Year five |
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$ |
6,000,000 |
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Notwithstanding the foregoing, in the event Tenant fails to achieve substantial completion of Phase
II of the Project by October 31, 2013 due to fire, labor disputes, adverse weather conditions,
unavoidable casualties or other causes which are unforeseeable and beyond the Tenant’s reasonable
control (“Force Majeure Event”), then Tenant shall not be subject to the liquidated damages set
forth in this section to the extent and for so long as such failure is the result of a Force
Majeure Event.”
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d. Section 4(k) is amended and restated as follows:
“Improvement Districts. At the request of Landlord, Tenant shall reasonably cooperate with
Landlord to form a Community Improvement District (CID) as authorized pursuant to Sections 67.1401
to 67.1571 of the Revised Statutes of Missouri, a Transportation Development District (TDD) as
authorized pursuant to Sections 238.200 to 238.275 of the Revised Statutes of Missouri, or a Port
Improvement District (PID) as authorized pursuant to Sections 68.200 to 68.260 of the Revised
Statutes of Missouri, or any combination thereof, (collectively, the “Taxing Districts”), which
includes the Project, subject to Tenant and Landlord’s agreement to the following:
a.
the governance of the proposed Taxing District(s);
b. the boundaries of the proposed Taxing District(s);
c. the funding mechanism, source of tax, and objectives of the proposed Taxing
District(s); and
d. the use of funds of the proposed Taxing District(s).
Notwithstanding the foregoing, Tenant and Landlord agree that: (i) the Taxing District(s) shall not
impose an aggregate sales tax rate applicable to Tenant that exceeds 8.75% when combined with all
other sales tax rates that apply to the Project (provided that such maximum rate shall be increased
or decreased in the event (and to the extent) of any increase or decrease in either the Missouri
state-wide sales tax rate or the St. Louis County county-wide sales tax rate currently applicable
to Tenant); (ii) Tenant shall support and accept Landlord’s proposal with respect to the formation
of any proposed Taxing District(s) and the itemized issues set forth in ‘a’ through ‘d’ above as
long as (x) the objectives and use of funds of any proposed Taxing District(s) are reasonably
calculated to benefit the ▇▇▇▇▇ community or any segment thereof, and (y) the formation, governance
or implementation of any such Taxing District(s) does not conflict with or otherwise unreasonably
impair Tenant’s business operations or the Project (except for the legitimate sales tax burden
imposed by any proposed Taxing District(s)); (iii) the formation of the Tax District(s) will not
result in any additional costs to Tenant, in terms of increased sales or other tax, directly
related to the construction of Phase II of the Project; and (vi) the formation of the Tax District
will not result in increased property taxes on the Property or the improvements thereon.”
e. Section 4(l) is hereby deleted in its entirety.
2. Section 29 is amended to substitute the following notice addresses for Tenant:
Pinnacle Entertainment, Inc.,
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Executive Vice President and General Counsel
Copies to ▇▇▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
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3. The parties hereto agree that the legal description of the Property is the legal
description as reflected in that Correction to Memorandum of Lease recorded in the office of the
Recorder of Deeds of St. Louis County, Missouri on August 20, 2010, as Instrument No. 00859, at
Book 19071, Page 3997, and is the legal description attached hereto as Exhibit 2.
4. Except as modified and amended by this Agreement, the Lease and Development Agreement shall
remain in full force and effect in accordance with its terms. Unless the context otherwise
indicates, all other terms and conditions of the Lease and Development Agreement which are the same
as or directly related to the revised terms and conditions set out in this Agreement are similarly
modified to be consistent with this Amendment. The provisions of this Amendment shall inure to the
benefit of and be binding upon the parties hereto, their successors and assigns.
5. If there is a conflict between the Lease and Development Agreement and this Eighth
Amendment, the Eighth Amendment shall control.
6. This Amendment may be executed in counterparts.
IN WITNESS WHEROF, the undersigned have set their hands and seals as of the date first written
above.
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LANDLORD:
ST. LOUIS COUNTY PORT AUTHORITY
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By: |
/s/
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Name: |
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ |
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Title: |
Executive Director |
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TENANT:
PINNACLE ENTERTAINMENT, INC.
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By: |
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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Name: |
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ |
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Title: |
President and Chief Executive
Officer |
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Exhibit 1
EXHIBIT C
Essential Elements
PINNACLE ENTERTAINMENT, INC. COMMITMENT
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Phase
I |
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Minimum Investment:
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$375 million |
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Elements Included:
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- 90,000 sq. ft. casino, containing not less than 2,000 slots and 50 tables |
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- 3 restaurants |
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- parking sufficient to serve aforesaid facilities |
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- Connector road from I-55 into the property, including ▇▇▇▇▇ bridge replacement |
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- Environmental Remediation of Landlord Property (80 acre parcel) and the Known Conditions of
the Access Road Property |
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- $5.1 million contribution for community/aquatic center and baseball and soccer fields |
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Phase II |
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Minimum Investment:
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$75 million |
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Elements Included:- Hotel with minimum of 200 rooms with a lobby and
adjacent meeting room/event space of no less than 10,000 square feet
with a capacity of at least 500 guests with sit-down tables or 750
guests in the absence of tables |
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- parking garage with a minimum of 1,600 parking spaces |
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Exhibit 2
LEGAL DESCRIPTION OF
PROPERTY
Exhibit A
Parcel No 1:
Part of Blocks 1 and 2 of ▇▇▇▇▇’▇
SUBDIVISION in the CHOUQUETTE TRACT in U.S. Survey 904, Township 44 North,
Range 7 East, St. Louis County, Missouri and being more particularly described
as follows:
Beginning at the Southwest corner of
property described as Tract No. 3, in deed to the National Lead Company,
recorded in Book 2269, Page 137, St. Louis County Recorder’s office,
being in the Eastern line of the Missouri Pacific Railroad Company,
right-of-way, 80 feet wide; thence North 1 degree 15 minutes East 796.50 feet
along the Western line of said National Lead Company property, and along the
Eastern line of said Missouri Pacific Railroad Company, right-of-way, to the
Northwestern corner of said National Lead Company property, in the Southern
line of East ▇▇▇▇▇ Avenue, 30 feet wide; thence North 89 degrees 59 minutes
East 136.04 feet along the Northern line of said National Lead Company
property, and along the Southern line of said East ▇▇▇▇▇ Avenue, to the
Northeastern line of said National Lead Company property; thence South 37 degrees
49 minutes East 14.83 feet along the Northeastern line of said National
Lead Company property, to the Western line of property described as Tract
No. 1, in said deed to the National Lead Company, recorded in said Book
2269, Page 137; thence North 22 degrees 11 minutes East 437.86 feet,
North 29 degrees 07 minutes East 453.32 feet, and North 41 degrees
11 minutes East 475.93 feet along the Western line of said property described as Tract
No. 1 in said deed to the National Lead Company, to its Northwestern
corner, being also the Southwestern corner of property described in deed to the
National Lead Company, recorded in Book 2667, Page 100, St. Louis County
Recorder’s Office; thence North 28 degrees 45 minutes
East 547.90 feet
along the Western line of said property described in deed to the National Lead
Company, recorded in said Book 2667, Page 190, to its intersection with the
Western line of property described in deed to the National Lead Company,
recorded in Book 3727, Page 1, St. Louis County Recorder’s Office; thence
North 7 degrees 41 minutes East 270.57 feet, North 33 degrees 14 minutes East
412.29 feet, and North 45 degrees 39 minutes East 308.34 feet along the Western
line of said property described in deed to the National Lead Company, recorded
in said Book 3727, Page 1, to its most Northern corner, being also the
Northwestern corner of property described in deed to the National Lead Company,
recorded in Book 1672, Page 509, and re-recorded in the Deed of Correction, in
Book 1701, Page 501, St. Louis County Recorder’s Office; thence South
58 degrees 00 minutes East 67.16 feet along the Northern line of said National
Lead Company property, described in deed re-recorded in said Book 1701, Page
501, to its Northeastern corner, being in the Western line of property
described in deed to National Pigments & Chemical Company, recorded in Book
1238, Page 99, St. Louis County Recorder’s Office; thence North
32 degrees 00 minutes East 346.52 feet, and North 40 degrees 59 minutes East 69.47
feet along the Western line of said National Pigments & Chemical Company
property, to its Northwestern corner in the Southern line of the River Des
▇▇▇▇▇ Drainage Works, right-of-way, 280 feet wide; thence South 50 degrees 01
minutes 30 seconds East 675 feet, more or less, along the Northern line of said
National Pigments & Chemical Company property, and along the Southern line
of said River Des ▇▇▇▇▇ Drainage Works, right-of-way, to the Mississippi River;
thence Southwardly 3800 feet, more or less, along the Mississippi River, to the
Southern line of said property described as Tract No. 3 in deed to the
National Lead Company, recorded in said Book 2269, Page 137; thence North 67
degrees 49 minutes West 735 feet, more or less, and North 90 degrees 00 minutes
West 112.19 feet along the Southern line of said property described as Tract
No. 3, to its Southwestern corner in the Eastern line of said Missouri
Pacific Railroad Company, right-of-way, and the point of beginning, according
to survey executed by Pitzman’s Co. Surveyors & Engineers during the
month of June 1987.
Parcel No. 2:
Easement for ingress and egress for the
benefit of the land described herein as Parcel No. 1 as created and
established by General Warranty Deed and Agreement, dated July 19, 1923,
executed by and between ▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, his wife, and
Titanium Pigment Company, Inc., recorded July 26, 1923 in book 607 Page 98,
as confirmed and affected by instrument recorded August 16, 1933 in
Book 1238 Page 99.
Parcel No. 3:
Easement for ingress and egress for the
benefit of the land described herein as Parcel No. 1 as created and
established by City of ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇. ▇▇▇▇▇, approved
April 12, 1933 and Grant of Easements, dated as of August 1, 1933,
executed by and between ▇▇▇▇▇▇ ▇. ▇▇ ▇▇▇▇, otherwise known and designated as
▇.▇. ▇▇ ▇▇▇▇ and ▇▇▇▇▇▇ ▇▇ ▇▇▇▇, his wife and National Pigments & Chemical
Company, recorded August 18, 1933 in Book 1255 Page 96.
Less and Excepting
▇▇▇ ▇ ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ subdivision
as reflected on subdivision plat prepared by ▇▇▇▇▇ ▇▇▇▇▇ & Associates
recorded with the St. Louis County Recorder of Deeds on November 19, 2009
as instrument 200911190063 in Plat Book 357, Pages 445-447.
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