Exhibit 10.38
FOURTH AMENDMENT TO LEASE AND DEVELOPMENT
AGREEMENT
This FOURTH AMENDMENT TO LEASE AND
DEVELOPMENT AGREEMENT (the “Amendment”) is made and
entered into this 18th day of January, 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 between the Landlord and the Tenant
of even date, as further amended by letter agreement between the
Landlord and Tenant dated October 4, 2005, and as further
amended by Second Amendment to Lease and Development Agreement
dated October 28, 2005 between the Landlord and Tenant, and as
further amended by the Third Amendment to Lease and Development
Agreement dated August, 2006 (collectively, the “Lease and
Development Agreement”) pursuant to which the Tenant agreed,
subject to the terms and conditions in the Lease and Development
Agreement, to construct and develop the gaming and mixed use
Project in unincorporated Lemay, Missouri, including an access road
(the “Project”).
B. Landlord and Tenant agreed in
Section 4(t) of the Lease and Development Agreement to seek
remediation tax credits issued by the Missouri Department of
Economic Development (“MDED”) for the purpose of
assisting with the financing of one or more Remedial Action Plans
for Phase I (the Property), Phase II (the Access Road Property),
and Phase III (the Remaining Property).
C. Pursuant to Section 4(t)(i)
of the Lease and Development Agreement, the Landlord and Tenant
determined that the Landlord would complete and submit the
Application for the tax credits to be issued by the
MDED.
D. On July 21, 2006, the MDED
determined that the Landlord was entitled to receive up to
$12,015,819 in tax credits for the purpose of financing eligible
costs of performing the work on the Remedial Action Plans for Phase
I of the Project.
E. The parties have agreed to a
budget for the environmental remediation and the Landlord
subsequently contracted with an environmental consultant on the
basis of the agreed to budget. Landlord and Tenant are completing
negotiations on apportionment of the use of revenues
