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EXHIBIT
10.1
SIXTH AMENDMENT TO LEASE AND
DEVELOPMENT AGREEMENT
This SIXTH AMENDMENT TO LEASE
AND DEVELOPMENT AGREEMENT (the “Amendment”) is made and
entered into this 26 day of November, 2007 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, Third
Amendment to Lease and Development Agreement dated August 11,
2006, Fourth Amendment to Lease and Development Agreement dated
January 18, 2007, and as further amended by Fifth Amendment to
Lease and Development Agreement dated March 30, 2007
(collectively, the “Lease and Development Agreement”)
which governs among other things the development of the property
described in the Lease and Development Agreement.
B. The Landlord and Tenant
desire to amend the Lease and Development Agreement to among other
things increase the Tenant’s investment, provide for the
construction of the “Weber Bridge” by Tenant and
otherwise modify certain elements of the Project.
C. Capitalized terms used
herein and not otherwise defined 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. All references in the
Lease and Development Agreement to “Commercial
Facilities” shall now be referenced as “Phase II of the
Project,” as such term is further defined herein.
2. Recital E. is amended and
restated as follows:
Upon satisfaction of certain
conditions described herein and receipt of the required approvals
from the Commission set forth in this Lease, Tenant has agreed, at
Tenant’s sole cost and expense, to construct, develop and
operate the Gaming Facilities, parking required in Phase I of the
Project (hereinafter defined) and the Project Roadway, to make a
contribution to Landlord for the community/aquatic center and the
baseball and soccer fields and to construct and develop the
elements of Phase II of the Project (hereinafter
defined)(collectively, the “On-Site Project”), all in
accordance with the terms and conditions of the Lease.
3. Section 4 is amended
as follows:
a. The following shall be
added after the caption “ Project Construction and
Development” :
The Tenant shall at its sole
cost and expense, undertake a two phase project for an aggregate
investment of $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 2,300 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 baseball and soccer fields; (iv) development and
construction of a hatch shell to be located on the Park Property,
and (v) the development and construction of the Project
Roadway, including a replacement of the Weber Road Bridge
(hereinafter defined). The Tenant shall make an investment of not
less than $375,000,000 on Phase I of the Project. “Phase II
of the Project” shall mean (i) the development and
construction of a hotel with a minimum of 100 rooms and
(ii) some combination of additional hotel rooms, an
entertainment/meeting space, additional casino space, additional
restaurants, retail space, movie theatres, bowling lanes, or other
amenities and additional parking spaces sufficient to serve the
aforesaid facilities, as mutually agreed to by Tenant and Landlord,
which are intended to increase revenues to the Property. The Tenant
shall make an investment of not less than $75,000,000 on Phase II
of the Project. The Landlord and the Tenant anticipate that Phase
II of the Project may comprise approximately 280,000 square feet
but the aggregate square footage will depend on the components
selected. Phase I of the Project and Phase II of the Project are
collectively referred to as the “Project.”
A new Exhibit C to the
Agreement is substituted entitled “Essential Elements”,
which is attached hereto as Exhibit 1 .
b. Section 4(a) is
amended and restated as follows:
“Phase I of the
Project. The Tenant shall contribute $5,100,000 to the
Landlord, or such other party as is designated by Landlord, on the
date of execution by the Landlord and Tenant of this Amendment for
the community/aquatic center and the baseball and soccer fields
which shall be in full satisfaction of Tenant’s obligations
with respect to the community/aquatic center and the baseball and
soccer fields. The Tenant has substantially completed the
Environmental Remediation, subject to receipt of a “no
further action” letter from the Missouri Department of
Natural Resources. Not later than December 31, 2007, Tenant
shall start to construct the Gaming Facilities and the Project
Roadway in a first class manner in accordance with all laws,
regulations, ordinances and permit requirements (collectively,
“Government Requirements”) and otherwise in accordance
with the terms of the Lease (the “Work”). Title to
Tenant’s personalty and fixtures and Tenant’s Gaming
Facilities and those items that are part of Phase II of the Project
shall at all times
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during the term of this Lease
remain with Tenant, subject to the provisions of
Section 5(e).
c. The first sentence of
Section 4(g) is amended and restated as follows:
Tenant shall proceed in
accordance with the applicable Work Schedule with reasonable
diligence to obtain all construction permits and to commence and
complete the Applicable Work in accordance with the applicable
Plans, and subject only to Unavoidable Delays and delays caused by
Landlord or the County, the Work Schedule and to obtain all
Occupancy Permits and to complete and open the Gaming Facilities to
the public (“Project Opening”) by May 1,
2009.
d. Section 4(h) is
amended and restated as follows:
“ Community
Facilities. The Tenant shall construct the hatch shell on the
Park Property and complete the same within eighteen
(18) months following the Commencement Date, subject to
Unavoidable Delays and other applicable provisions of this Lease.
If Tenant fails to complete the hatch shell within the time frame
referenced above, the Landlord may, in its discretion, require that
the Tenant pay to Landlord $250,000 as liquidated damages for the
delay in completion and not as a penalty. The Tenant will have a
license throughout the Term to hold concerts at the hatch shell
from time to time. The license shall provide that the Tenant may
use the shell for up to four (4) nights a month at no charge
to Tenant, provided that the Tenant shall be responsible for
providing its own security and cleanup for any events for which the
Tenant uses the hatch shell. Tenant established a budget of $20
million to construct the Project Roadway, the other off-site
improvements and the Community Facilities and for the contribution
to Landlord for the community/aquatic center. Tenant has exceeded
the $20 million budget on the roadway alone. Upon making the $5.1
million guaranteed contribution for the community/aquatic center
and the baseball and soccer fields as provided in
Section 4(a), Tenant shall have satisfied all of its
obligations with respect to the community/aquatic center and the
baseball and soccer fields. Upon the completion of the construction
of the hatch shell on the Park Property, the Landlord or the County
shall take all necessary actions to dedicate the Park Property to
the County or the Park District as a park.”
e. Section 4(i) is
amended and restated as follows:
“ Phase II of the
Project. Not later than three (3) years following the
Commencement Date, Tenant at Tenant’s sole cost and expense,
shall complete Phase II of the Project. Tenant shall have the right
in Tenant’s discretion to engage any one or more third party
developers, retail tenants, contractors, retail consultants, a
master retail developer or tenant or other qualified person or
corporation to develop, construct and operate all or any portion of
Phase II of the Project. In the event Tenant fails to timely
perform its obligations with respect to Phase II of the Project,
Tenant shall pay to Landlord additional payment or payments in the
amounts set forth below on January 2 of each year (or prorated
if less than a year), commencing on the January 2 immediately
following the expiration of 3 years until such time as Tenant has
met its
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obligations with respect to
Phase II or paid a total of $20,000,000 to the Landlord to be used
for the benefit of the Lemay area, which sums will be collected by
Landlord as liquidated damages and not as a 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 the Phase II of the Project; provided, however, that if
this 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,
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